Dean v. City of Shreveport

United States Court of Appeals
Fifth Circuit
F I L E D
REVISED FEBRUARY 10, 2006
UNITED STATES COURT OF APPEALS January 25, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk

No. 04-31163

JEFFREY TODD DEAN, ET AL.

Plaintiffs-Appellants,

VERSUS

THE CITY OF SHREVEPORT,

Defendant-Appellee.

Appeal from the United States District Court
For the Western District of Louisiana
( 5:00-CV-2372 )

Before GARWOOD, SMITH, and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

INTRODUCTION

Plaintiffs-Appellants (“Appellants”) challenge the district

court’s grant of summary judgment in favor of Defendant-Appellee

City of Shreveport (the “City”) dismissing Appellants’ 42 U.S.C. §

1983, Title VII, and Louisiana constitutional and statutory claims.

We affirm in part, reverse in part, and remand the case for further

proceedings consistent with this opinion.

Appellants are white males who were denied employment after

applying to become City firefighters. At the time Appellants
applied, the City used a hiring process that placed applicants into

separate lists according to race and sex. The City created its

race-conscious hiring process in an attempt to comply with a 1980

consent decree drafted to end discriminatory hiring practices in

the City’s fire department and to remedy the effects of past

discrimination. Appellants challenge both the decree and the

hiring process.

FACTUAL BACKGROUND

In 1977, the U.S. Department of Justice (“DOJ”) filed a

lawsuit against the City alleging its fire department used racially

and sexually discriminatory hiring practices. To settle the

lawsuit, the City signed a proposed consent decree providing a plan

to end then-current discriminatory practices and remedy the effects

of past discrimination. Although the City signed the decree, it

did not admit to any unlawful discrimination. Because the City

declined to admit to unlawful discrimination, the district court

initially refused to enter the decree. United States v. City of

Alexandria, No. 77-2040, 1977 WL 69 (E.D. La. July 22, 1977).

However, in 1980, this Court reversed the district court and

ordered the decree be entered. United States v. City of

Alexandria, 614 F.2d 1358 (5th Cir. 1980).1

1
We reviewed the decree at that time under a rat ional basis standard of review. City of
Alexandria, 614 F.2d at 1363 (inquiring whether the decree was “reasonably related to the legitimate
state goal of achieving equality of employment opportunity”). This standard of review no longer
applies, and we now strictly scrutinize all race-conscious remedies to ensure they are narrowly
tailored to achieve a compelling government interest. City of Richmond v. J.A. Croson Co., 488 U.S.

2
 To remedy the effects of past discrimination, the decree sets

forth a long-term goal that the City achieve – subject to the

availability of qualified applicants – the same proportions of

blacks and women in its fire department “as blacks and women bear

to the appropriate work force in the particular jurisdiction.”2

However, the decree does not define “appropriate work force.” The

decree also requires the City to adopt an interim hiring goal of

filling at least fifty percent of all firefighter vacancies with

qualified black applicants and at least fifteen percent with

qualified female applicants. The interim goal remains in effect

until the long-term goal is achieved and maintained for one year.

The decree itself does not mandate any particular hiring

process for meeting its goals. Therefore, the City formed its own

process.3 Phase one requires all firefighter applicants to take

the Civil Service Exam. To pass, an applicant needs a score of at

469, 493-94 (1989). Thus, as we re-evaluate the decree under strict scrutiny, we are not bound by
our prior approval of it under the rational basis standard.
2
The decree is published as an appendix to City of Alexandria, 614 F.2d at 1367-72.
3
The City’s hiring process remained substantially the same from the time the decree was
entered until Appellants were denied employment between 2000 and 2002. In 2004, the City changed
its hiring process. The City claims it continues to strive toward the interim and long-term goals in
the decree, but that its new hiring process is race-neutral. Much to this Court’s dissatisfaction, the
City has kept secret the details of its new hiring process. In addition, the City has failed to explain
how it expects its new allegedly race-neutral hiring process to meet the goals of the decree when its
old race-conscious process apparently did not. In any event, we limit our analysis to the hiring
process the City used at the time Appellants were denied employment because it is that process
Appellants argue violated their rights. We refer to the City’s old hiring process in the present tense
in our opinion purely to avoid continuous, and possibly confusing, tense changes.

3
least seventy-five. Points are then added to the scores of

applicants with prior emergency medical or paramedic training or

military service. When the final numerical scores are calculated,

the applicants are separated into three lists: a white male list,

a black male list, and a female list. Each list is ranked by exam

score from highest to lowest. The City then determines how many

firefighter positions it needs to fill. Finally, starting with the

highest exam score on each list, the City selects approximately

twice as many applicants as vacant spots to proceed to phase two of

the hiring process. Of those selected to proceed, fifty percent of

the males are white and fifty percent are black. Every female who

receives a seventy-five on the exam usually proceeds to phase two

because of the extremely low number of female applicants.

Phase two includes six additional steps an applicant must pass

to become a firefighter: (1) an agility test; (2) a general

preliminary interview, screening for disqualifying conduct, such as

drug use; (3) a criminal background check; (4) a polygraph exam;

(5) a psychological exam and interview; and (6) a medical exam. An

applicant who fails any step is immediately denied employment. An

applicant who passes each step is immediately awarded employment.

Under this hiring process, Appellants’ exam scores in phase

one were too low on the white male list to proceed to phase two.

PROCEDURAL HISTORY

In October 2000, Appellant Jeffery Todd Dean (“Dean”), an

4
unsuccessful white male applicant, sued the City under 42 U.S.C. §

1983, alleging the decree and the hiring process violate the Equal

Protection Clause of the Fourteenth Amendment. Dean and the City

filed cross-motions for summary judgment. In 2002, during the

pendency of those motions, eight additional white male applicants

brought similar discrimination suits against the City. In addition

to Dean’s equal protection claim, they asserted claims under Title

VII, the Louisiana Constitution, and a Louisiana anti-

discrimination employment statute.4 The cases were consolidated

with Dean’s, and all eight joined his pending motion for summary

judgment. All parties stipulated to proceed before a magistrate

judge. In October 2004, the magistrate judge denied Dean’s motion

for summary judgment and granted the City’s, dismissing all claims

against the City. This timely appeal followed.

DISCUSSION

I. Applicable Standard of Review

We review a district court’s grant of summary judgment de novo

and apply the same standards as the district court. Daniels v.

City of Arlington, 246 F.3d 500, 502 (5th Cir. 2001). Summary

judgment is proper only “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

4
We address a total of four claims on appeal. However, not all nine Appellants brought each
of these claims below. Therefore, on remand the district court’s first order of business will be to
determine the effects of our decision today on each individual Appellant.

5
material fact and that the moving party is entitled to judgment as

a matter of law.” FED. R. CIV. P. 56(c); see also Priester v.

Lowndes County, 354 F.3d 414, 419 (5th Cir. 2004). “If the moving

party meets the initial burden of showing there is no genuine issue

of material fact, the burden shifts to the nonmoving party to

produce evidence or designate specific facts showing the existence

of a genuine issue for trial.” Priester, 354 F.3d at 419. We

resolve doubts in favor of the nonmoving party and make all

reasonable inferences in favor of that party. Id.

II. Appellants’ Equal Protection Clause Claim

Appellants first contend that the consent decree and the

City’s hiring process violate their right to equal protection under

the United States Constitution.

a. Strict Scrutiny

The Equal Protection Clause of the Fourteenth Amendment

provides that “[n]o State shall . . . deny to any person within its

jurisdiction the equal protection of the laws.” U.S. CONST. amend.

XIV, § 1 (emphasis added); see also City of Richmond v. J.A. Croson

Co., 488 U.S. 469, 493 (1989). “Classifications based on race

carry a danger of stigmatic harm . . . [and] may in fact promote

notions of racial inferiority and lead to a politics of racial

hostility.” Croson, 488 U.S. at 493. Thus, all race-conscious

measures receive strict scrutiny review under the Equal Protection

Clause. See id. at 493-94; see also Black Fire Fighters Ass’n v.

6
City of Dallas, 19 F.3d 992, 995 n.6 (5th Cir. 1994) (explaining

that this standard applies to consent decrees). Strict scrutiny

review demands that a race-conscious measure be (1) justified by a

compelling government interest and (2) narrowly tailored to further

that interest. Police Ass’n ex rel. Cannatella v. City of New

Orleans, 100 F.3d 1159, 1167 (5th Cir. 1996).

1. Compelling Interest

It is well settled that the government has a compelling

interest in remedying its own past discrimination. See United

States v. Paradise, 480 U.S. 149, 167 (1987). However, a general

assertion of past societal discrimination is insufficient. See

Croson, 488 U.S. at 499. Rather, the government must justify its

action with a showing of past discrimination by the governmental

unit seeking to use the race-conscious remedy. See id. at 495-97;

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

Police Ass’n, 100 F.3d at 1168.

The Supreme Court has offered little guidance as to how much

evidence of past discrimination is required. Id. However,

“[t]here is no doubt that ‘[w]here gross statistical disparities

can be shown, they alone in a proper case may constitute prima

facie proof of a pattern or practice of discrimination.’” Croson,

488 U.S. at 501 (alteration in original) (quoting Hazelwood Sch.

Dist. v. United States, 433 U.S. 299, 307-08 (1977)). The relevant

statistical comparison is between the number of minorities in the

7
work force of the governmental unit and “the number of minorities

qualified to undertake the particular task.” See Croson, 488 U.S.

at 502.

Appellants argue that even in 1980, the City had no compelling

interest to justify the decree or a race-conscious hiring process.

Appellants point out that the decree is not based on any formal

factual finding of past discrimination. Further, the City’s hiring

process was adopted solely to comply with the goals of the decree.

Appellants urge us to hold that a governmental unit may use a race-

conscious remedy only after a formal judicial, legislative, or

administrative finding of past discrimination. The City maintains

that in 1980 it clearly had a compelling interest. The City

concedes that a formal finding of past discrimination was never

made, but insists that one was not required.

We agree with the City. Nothing in Supreme Court or Fifth

Circuit precedent compels us to require a formal finding of

discrimination prior to the use of a race-conscious remedy. To the

contrary, in Police Ass’n, 100 F.3d at 1167-68, we stated that

“Croson does not require a city to incriminate itself by proving

its own participation in past discrimination.” It is when a

remedial program is challenged that a trial court must make a

factual determination that there was a strong basis in evidence for

the conclusion that remedial action was necessary. Thus, what we

meant in Police Ass’n was that the government need not incriminate

8
itself with a formal finding of discrimination prior to using a

race-conscious remedy, but if the remedy is later challenged, a

court must determine there was a strong evidentiary basis for its

enactment. This approach is consistent with pre-Croson Supreme

Court precedent. See Wygant, 476 U.S. at 277 (explaining that

“[e]videntiary support for the conclusion that remedial action is

warranted becomes crucial when the remedial program is challenged

in court by nonminorit[ies]” (emphasis added)); see also id. at 289

(O’Connor, J., concurring) (agreeing that “a contemporaneous or

antecedent finding of past discrimination . . . is not a

constitutional prerequisite . . . to an affirmative action plan”

(emphasis added)). This approach is also in line with other

circuits that have addressed the issue. See, e.g., Aiken v. City

of Memphis, 37 F.3d 1155, 1162-63 (6th Cir. 1994) (“No formal

finding of past discrimination by the government unit involved is

necessary . . . .”); see also In re Birmingham Reverse

Discrimination Employment Litig., 20 F.3d 1525, 1539 (11th Cir.

1994) (explaining that the government “was not required to make

formal findings about its own past discrimination--it merely had to

have a strong basis in evidence”(emphasis added)). Thus, to the

extent our prior decisions were unclear, we now clarify that when

a governmental unit employs a race-conscious remedy, it need not

have already made a formal finding of past discrimination.

Nevertheless, if the remedy is later challenged, the reviewing

9
court must ensure there was strong evidence of past discrimination

warranting the remedy. We turn now to whether strong evidence of

discrimination existed in this case, such that in 1980 the City had

a compelling interest in remedying it.

The district court concluded that the City made an adequate

showing of past discrimination. We agree. Prior to 1974, the

City’s fire department had never hired a black employee. In 1974,

after it was sued by black applicants alleging racially

discriminatory hiring practices, the City hired three black

firefighters. After the lawsuit was settled, the City hired no

black employees in 1975, just one black firefighter in 1976, and no

black employees in 1977. In 1977, another lawsuit was brought

against the City, this time by the DOJ, alleging racially and

sexually discriminatory hiring practices. In the time between the

1977 lawsuit and the 1980 decree, the City hired only six

additional black firefighters. Thus, when the decree was entered

to settle the DOJ lawsuit, only 10 of the City’s 270 firefighters

were black.5 At that time, blacks accounted for approximately

forty percent of the general population in the City of Shreveport.

Further, the City now admits it systematically excluded all black

applicants prior to 1974 and hired the few it did between 1974 and

1980 in response to pending lawsuits. Appellants do not contest

these statistics and offer no alternative explanation for them,

5
By 1980, the City still had not hired a single female firefighter.

10
expert or otherwise.

We recognize that the relevant comparison when determining

whether discrimination existed is between the number of black

firefighters in the City’s fire department and the “number of

[blacks] qualified to undertake the particular task,” see Croson,

488 U.S. at 502, not the number of blacks in the general

population, see id. We are also aware that the City has not

presented a precise calculation of how many black applicants were

qualified to become firefighters in the years leading up to the

1980 decree. Nevertheless, we find it inconceivable that the

number of qualified blacks was an “emphatic zero.” See Dean v.

City of Shreveport, No. 00-2372, slip op. at 14 (W.D. La. Oct. 22,

2004) (quoting Guice v. Fortenberry, 661 F.2d 496, 505 (5th Cir.

1981) (en banc)).

In most cases, a governmental unit’s failure to provide

statistical data comparing the number of minorities in its work

force with the number of minorities qualified to undertake the

particular task, rather than the number of minorities in the

general population, will prove fatal to an attempt to show past

discrimination. See, e.g., Croson, 488 U.S. at 501-02 (finding no

compelling interest in remedying past discrimination because the

government failed to show how many minorities in the relevant

market were qualified to undertake the particular task). But in

rare cases, the statistical disparity may be so great between a

11
particular work force and the general population that, along with

other overwhelming evidence, it may provide us with an adequate

basis to conclude no genuine factual issue remains regarding the

existence of past discrimination.

This is such a case. In addition to the fact that the City

hired no black employees prior to 1974 and only 10 black

firefighters as of 1980, the overwhelming evidence shows that (1)

the City now admits that for over 100 years it systematically

excluded all minorities from its fire department; (2) the City has

been sued numerous times for racial and sexual discrimination; and

(3) Appellants have failed to offer any alternative explanation,

expert or otherwise, for the gross statistical disparity.

Therefore, the district court properly concluded that the City had

a compelling interest in 1980 to enter into the decree and

implement a race-conscious hiring process.6

The City argues that this conclusion ends our compelling

interest inquiry. We disagree. In addition to showing past

6
Again, we do not intend to suggest a statistical disparity between a work force and the
general population, without additional overwhelming evidence, is enough to show past discrimination.
Had the City not admitted to systematically excluding blacks from its work force and twice previously
been sued for racial discrimination, our decision today might have been different. See Paradise, 480
U.S. at 169 (taking into account that the governmental unit systematically excluded minorities and
had previously faced numerous allegations of racial discrimination). Similarly, our decision might
have been different had Appellants rebutted the City’s evidence or offered an alternative explanation,
thereby raising some genuine factual issue. See Priester v. Lowndes County, 354 F.3d 414, 419 (5th
Cir. 2004) (explaining that after the moving party meets it initial burden of showing no genuine issue
of material fact remains, the burden shifts to the nonmoving party to raise one by producing evidence
or by pointing to specific facts).

12
discrimination, the City must also convince us that when Appellants

were denied employment between 2000 and 2002, lingering effects of

past discrimination still necessitated a race-conscious remedy.

See Paradise, 480 U.S. at 169-70 (focusing repeatedly on whether

any remaining effects of past discrimination still warranted a

race-conscious remedy); see also Police Ass’n, 100 F.3d 1168-69

(same). If the effects of past discrimination no longer existed

when Appellants were denied employment, the City no longer had a

compelling interest to justify a race-conscious remedy. See

Paradise, 480 U.S. at 169-70; see also Police Ass’n, 100 F.3d 1168-

69. The district court in error focused solely on whether the City

had a compelling interest in 1980. See Dean, slip op. at 13-15.

Thus, we must determine on appeal whether any effects of the City’s

past discrimination still existed when Appellants were denied

employment, such that the City still had a compelling interest to

justify its race-conscious remedy at that time.

Again, as mandated by Croson, 488 U.S. at 501-02, the relevant

statistical comparison is between the number of blacks in the

City’s fire department and the number of blacks qualified to

undertake the particular task. Thus, in order to demonstrate that

its remedy was still necessary between 2000 and 2002, the City had

to show what percentage of its qualified applicant pool was black

during that time period. The City did not do so. The record is

entirely inconsistent regarding this issue, and the district court

13
failed to address it.

For example, Fire Chief Kelvin J. Cochran (“Chief Cochran”)

was asked in his deposition, “Do you know of any study or anything

that would indicate what the pool of available qualified applicants

might be blacks and women?” He responded, “No, ma’am.” Chief

Cochran was later asked, “To your knowledge, is there any kind of

study available . . . that would give some information on what the

actual demographics are for your fire district area or your hiring

area?” He again responded, “No, ma’am.”

Attempting to provide this crucial data, the City later hired

an expert statistician to calculate the demographics of its

qualified labor pool.7 The expert’s conclusions rested on the

assumption that the percentage of blacks passing the Civil Service

Exam established the percentage of blacks in the qualified labor

pool. We see numerous problems with this assumption, all of which

will require careful consideration on remand.

First, it is inappropriate to rely on an expert statistician

with a Ph.D. in Economics to determine what makes an applicant

qualified to become a firefighter. The City, its fire department,

or a vocational expert must make this determination. See Olson v.

Schweiker, 663 F.2d 593, 596-97 (5th Cir. 1981) (using a vocational

7
The DOJ also attempted to determine whether a statistical disparity existed between the fire
department’s work force and its qualified labor pool. After an initial conclusion in 2002 that there
was no disparity, the DOJ later concluded it “lacked [the] essential data necessary to render a
determination.” This illustrates the need for further factual development on remand.

14
expert to determine whether plaintiff was qualified for particular

positions); see also New Orleans (Gulfwide) Stevedores v. Turner,

661 F.2d 1031, 1035 (5th Cir. 1981) (same); Simons v. Sullivan, 915

F.2d 1223, 1224 (8th Cir. 1990) (same); Noble v. Ala. Dep’t of

Envtl. Mgmt., 872 F.2d 361, 363 (11th Cir. 1989) (deferring to the

state agency when establishing what qualifications were required

for certain state positions). A statistician, after he is informed

what a qualified applicant is, may then calculate the demographics

of the qualified labor pool. Second, the fire department itself

contradicts its own expert’s definition of a qualified applicant.

The expert defined qualified applicants as those having passed the

Civil Service Exam. Yet the City maintains, and the district court

stated in its ruling, “there is no evidence that persons with

higher passing scores make better fire[fighters] than those with

low passing scores.” Dean, slip op. at 17. We fail to understand

how passing scores conclusively establish the demographics of the

qualified applicant pool if passing scores mean nothing with

respect to predicting the quality of future firefighters. Third,

logic cuts against equating the percentage of blacks who pass the

Civil Service Exam with the percentage of blacks in the qualified

labor pool. Equating the two percentages ignores the six

subsequent steps an applicant must successfully pass in order to

become a firefighter, including: (1) an agility test; (2) a general

preliminary interview, screening for disqualifying conduct, such as

15
drug use; (3) a criminal background check; (4) a polygraph exam;

(5) a psychological exam and interview; and (6) a medical exam.

Surely, an applicant who receives a passing score but then fails

one of these requirements is not qualified.

On remand, the City must properly define a “qualified

applicant.” It must then provide reliable statistical data showing

the percentages of blacks in its work force and in its qualified

labor pool between 2000 and 2002. Only when the district court has

this information can it properly decide whether a sufficient

disparity still existed. Until then, a genuine issue of material

fact remains, thereby preventing a legal analysis of whether the

City’s race-conscious remedy was still necessary between 2000 and

2002. Although this alone requires us to reverse the district

court’s judgment and remand the case for further factual

development, we will also review the court’s narrow tailoring

analysis.

2. Narrow Tailoring

The Supreme Court has focused on the following factors

(“Paradise factors”) when reviewing a race-conscious remedy to

ensure it is narrowly tailored: the necessity of the particular

relief and the efficacy of alternative remedies; the flexibility

and duration of the relief, including the availability of waiver

provisions; the relationship between the numerical goal of the

relief and the relevant labor market; and the impact of the relief

16
on the rights of third parties. See Paradise, 480 U.S. at 171; see

also Black Fire Fighters Ass’n, 19 F.3d at 995. Considering these

factors, it is clear that additional factual issues still remain,

such that we cannot properly conduct a narrow tailoring analysis on

this record. However, we briefly discuss each Paradise factor to

highlight legal errors in the district court’s analysis and

specific factual disputes that must be resolved on remand.

a. Necessity of the Particular Relief and Efficacy
of Alternative Remedies

The district court concluded that the decree’s interim hiring

goal and the City’s hiring process were necessary remedies. The

court also decided that alternative remedies would have been

insufficient to remedy past discrimination. For the same reason

that we cannot complete our compelling government interest analysis

at this time--namely, the City’s failure to explain the

demographics of its qualified labor pool--we cannot properly review

and weigh the first Paradise factor. We will not be able to

determine whether the remedies in this case were necessary between

2000 and 2002, or whether alternative remedies would have sufficed,

until we know what statistical disparity still existed at that

time, if one still existed at all, between the fire department’s

work force and its qualified labor pool.

However, before moving on to the next Paradise factor, we must

point out numerous legal errors in the district court’s analysis of

this factor. The court reasoned that “[t]he absolute lack of black

17
or female fire[fighters] prior to the institution of [the 1973]

litigation, followed by a lapse in minority hiring until . . . the

[1980] consent decree,” made strong remedial measures necessary.

See Dean, slip op. at 16. This may have been true in 1980.

However, these events alone do not illustrate whether strong

measures were still necessary when Appellants were denied

employment. To the extent the district court focused on whether

the remedies were necessary in 1980, instead of between 2000 and

2002, it erred. There is no legal basis for the conclusion that

because a particular race-conscious remedy was necessary at one

point in time, it is still necessary two decades later. See

Paradise, 480 U.S. at 171-72 (focusing on whether the race-

conscious remedy was still necessary when plaintiffs were denied

promotions); see also Police Ass’n, 100 F.3d 1169 (same). On

remand, the City must show that the decree and hiring process were

necessary when Appellants were denied employment between 2000 and

2002.

The district court similarly erred in its analysis of the

efficacy of alternative remedies. By focusing on the time leading

up to the 1980 decree, the court could not have properly analyzed

whether alternative remedies would have sufficed when Appellants

were denied employment. The fact that alternative measures would

have been insufficient in 1980 does not indicate whether they would

have been insufficient when Appellants were denied employment. On

18
remand, the City must show that race-neutral or less intrusive

remedies would have been insufficient between 2000 and 2002.

In addition, the record is currently too inconsistent to

determine what alternative remedies, if any, the City has already

attempted and whether those or any others will suffice. For

example, one alternative to race-conscious hiring is increased

recruiting efforts targeting minorities. In his deposition, Chief

Cochran stated that when the City recruits, it “does not

specifically target black and female applicants.” But in the same

deposition he stated that the City specifically targets blacks by

“targeting the African-American churches.” When asked whether the

City’s recruiting policy is adequately geared towards attracting

minorities, Chief Cochran admitted, “the City has never done any

kind of self-evaluation to see if its recruiting efforts are

appropriate for recruiting minorities and women.” Thus, the

efficacy of alternative measures remains a genuine issue of

material fact that must be resolved on remand.

b. Flexibility and Duration

The district court found the decree and the hiring process

adequately flexible. The court also decided that their long

duration did not preclude finding the remedies narrowly tailored.

The primary question when analyzing a remedy’s flexibility is

whether its requirements may be waived. See Paradise, 480 U.S. at

177 (focusing its flexibility analysis solely on whether

19
requirements could be waived). If they may, the remedy is

adequately flexible. See id. The decree requires the City to

adopt the long-term goal of achieving, subject to the availability

of qualified applicants, the same proportions of blacks and women

in its fire department “as blacks and women bear to the appropriate

work force in the particular jurisdiction.” It also requires the

City to adopt an interim goal of hiring at least fifty percent

black and fifteen percent female employees until the long-term goal

is achieved and maintained for one year. The goal of the hiring

process parallels the interim goal in the decree. While the decree

does not allow the goals to be waived, it does specify that they

are “subject to the availability of qualified applicants.”

Despite this explicit exception, Appellants argue that the

decree and hiring policy require a rigid fifty percent racial

quota. The City, relying on the waiver provision, insists both are

flexible. The City also points out that since 1980, it has hired

less than fifty percent black employees in all but two hiring

classes. We agree with the district court that the remedies are

adequately flexible. We do so because the remedies here, as far as

their flexibility is concerned, parallel the flexibility of the

remedy in Paradise. In that case, the Alabama Department of Public

Safety was required to award half of all state trooper promotions

to black employees. Paradise, 480 U.S. at 153. However, the

requirement was contingent on the availability of qualified

20
candidates. Id. at 177. This alone satisfied the flexibility

requirement. Id. at 177-78. Like the remedy in Paradise, the

remedies here are contingent on the availability of qualified

applicants and are therefore adequately flexible.

The central theme of a duration analysis is that the shorter

the life-span of the remedy, the more likely it is narrowly

tailored. See Paradise, 480 U.S. at 178. The City’s obligations

under the decree end when it achieves its long-term goal, that is,

when the City achieves the same proportions of blacks and women in

its fire department “as blacks and women bear to the appropriate

work force.” In order to estimate when a particular goal might be

achieved, the goal must be clear. Thus, here it must be clear what

proportions “blacks and women bear to the appropriate work force.”

Determining this requires a precise definition of the phrase

“appropriate work force.” We have no precise definition.8

8
Contrary to Appellants’ contention, we did not define the “appropriate work force” in United
States v. City of Alexandria, 614 F.2d 1358 (5th Cir. 1980). However, we did state that the decree
“established long term goals of achieving . . . the same percentages of blacks and women as are
present in the workforces in the various affected localities.” Id. at 1362. Appellants argue this
statement conclusively established the goal of the decree as achieving a percentage of blacks in the
fire department equal to that in the general population. Appellants also insist we are now bound by
that statement. This would make the goal of the decree unconstitutional under Croson, 488 U.S. at
501-02.
We disagree with Appellants for several reasons. First, by elevating the standard of review
to strict scrutiny, Croson, 488 U.S. at 494, effectively overruled our holding in City of Alexandria.
Second, the definition of the phrase “appropriate work force” was not at issue in that case. See
generally City of Alexandria, 614 F.2d at 1361-67. Third, our statement referring to “the
workforces,” id. at 1362, may have been shorthand for “the appropriate work forces,” to which the
plain language of the decree refers. In any event, we are not bound today by our alleged
interpretation of the decree, or our subsequent approval of it, in City of Alexandria.

21
Therefore, the City’s goal remains unclear, and we cannot properly

analyze duration.

When interpreting a consent decree, general principles of

contract interpretation govern. United States v. Chromalloy Am.

Corp., 158 F.3d 345, 349 (5th Cir. 1998). We begin by looking to

the “four corners” of the decree. Id. at 350. We will then look

to extrinsic evidence if the decree is ambiguous. N. Shore Lab.

Corp. v. Cohen, 721 F.2d 514, 519 (5th Cir. 1983). A decree “is

ambiguous when it is reasonably susceptible to more than one

meaning, in light of surrounding circumstances and established

rules of construction.” Id.

We find the phrase “appropriate work force” ambiguous as a

matter of law. The decree itself sheds no light on what the

adjective “appropriate” means in this context. Because we cannot

decipher its meaning within the four corners of the decree, we need

extrinsic evidence to aid our interpretation. We have none. For

example, we have no preliminary drafts of the consent decree or

correspondence between the parties during negotiations. This

evidence would help us determine what the parties meant by

“appropriate work force.” Without extrinsic evidence, we have no

reason to choose one possible definition over another. Because the

phrase “appropriate work force” was not defined by the district

court, and because we are unable to do so without extrinsic

evidence, the issue must be resolved on remand.

22
 We also stress that regardless of the outcome of the issue on

remand, the duration component of this Paradise factor will favor

Appellants, at least to some degree. The durations of the remedies

in this case are breathtakingly long in comparison to others we

have reviewed.9 Edwards v. City of Houston, 78 F.3d 983, 1002

(5th Cir. 1996) (en banc), involved a consent decree that allowed

a police department to promote a certain number of minority

officers to sergeant and lieutenant.10 The remedy was to last no

longer than five years. Id. In Black Fire Fighters Ass’n, 19 F.3d

at 997, we struck down a consent decree that allowed a fire

department to promote a certain number of minorities to higher

ranking positions. We found the remedy not to be narrowly tailored

even though it lasted for only three years. Id. Finally, in

Police Ass’n, 100 F.3d at 1173, we again struck down a race-

conscious promotional plan. We found the remedy not to be narrowly

tailored even though it was a one-time set of promotions, not an

ongoing plan. Id. at 1169.

Therefore, the durations of the remedies in this case are

already considerably longer than those in any of our previous

cases. Thus, this factor will weigh in Appellants’ favor

9
In the midst of this litigation in 2004, the City changed its hiring process. Nevertheless, we
cannot ignore the fact that when Appellants’ claims arose, the process had been used for over twenty
years. The decree had been in effect for just as long, and continues to this day.
10
Although we did not reach the merits regarding the consent decree’s constitutionality in
Edwards, we refer to the case to illustrate just how long the durations of the remedies in this case are
in relation to others we have been confronted with in the past.

23
regardless of how soon the district court determines the remedies

might end. We point this out only to emphasize that in order for

these remedies to be upheld on remand, other Paradise factors must

strongly suggest they are narrowly tailored.

On remand, the district court must determine, using extrinsic

evidence, the decree’s precise long-term goal by defining the

“appropriate work force.” It must then estimate how long it will

take for the City to achieve that goal. When an approximate end

date is known, the district court can then re-weigh the duration

factor, keeping in mind the past precedent we have just

highlighted.

c. Relationship Between the Numerical Goal and the
Relevant Labor Market

The district court conducted no meaningful analysis of this

factor. Nor could it have. The long-term numerical goal of a

race-conscious remedy must be closely tied to the relevant labor

market. See Paradise, 480 U.S. at 179. To weigh this factor,

common sense demands we first know the remedy’s numerical goal and

the relevant labor market. As discussed above, we know neither.

Croson mandates the number of minorities in the relevant labor

market be determined by the “number of minorities qualified to

undertake the particular task.” Croson, 488 U.S. at 502. As we

pointed out first in our compelling interest analysis, and again in

the necessity and efficacy portion of our narrow tailoring

analysis, the City has not provided us with the demographics of its

24
qualified applicant pool. Therefore, we cannot properly define the

“relevant labor market.” This alone prevents us from reviewing and

weighing this factor. Further, as discussed in our duration

analysis, the long-term goal of the decree is unclear. Until we

know the numerical goal of the decree and the relevant labor

market, the relationship between the numerical goal and the

relevant labor market remains a genuine issue of material fact to

be resolved on remand.

d. Impact of the Relief on Third Parties

The final Paradise factor ensures a remedy does “not impose

an unacceptable burden on innocent third parties.” Paradise, 480

U.S. at 182. The district court found the impact on third parties

“not overly significant” in this case. See Dean, slip op. at 18.

The Supreme Court has given little guidance on this factor, but has

made a few things clear. First, remedies requiring nonminorities

to be fired impose a severe, and possibly unacceptable, burden on

third parties. Paradise, 480 U.S. at 182. Hiring preferences are

less burdensome. See id. Second, remedies allowing unqualified

minorities to be hired are likely not narrowly tailored. See id.

at 183. Third, remedies merely postponing a benefit to third

parties are less burdensome than ones permanently denying a

benefit. See id.

We agree with the district court that the impact on

nonminorities is not significant enough to make the decree and

25
hiring policy unconstitutional per se. We do so because the

remedies in this case have all three characteristics the Supreme

Court has previously said favor a finding of narrow tailoring

within the context of this factor: (1) they do not require

nonminorities to be fired; (2) they do not require unqualified

minorities to be hired; and (3) they do not pose an absolute bar to

nonminority employment. Paradise, 480 U.S. at 182-83. This factor

alone does not prevent a finding of narrow tailoring.

In sum, the district court on remand must develop the record

further and re-evaluate both whether the decree and the hiring

process were still justified at the time of suit by a compelling

government interest and whether they were narrowly tailored to

further that interest.

III. Appellants’ Title VII Claim

Appellants also argue that the City’s hiring process violates

Title VII. Specifically, Appellants refer us to 42 U.S.C. § 2000e-

2(l), which was added to Title VII in 1991 and provides that “[i]t

shall be an unlawful employment practice . . . in connection with

the selection or referral of applicants or candidates for

employment . . . to adjust the scores of, use different cutoff

scores for, or otherwise alter the results of, employment related

tests on the basis of race, color, religion, sex, or national

origin.” § 2000e-2(l) (emphasis added) Appellants claim that by

separating applicants’ Civil Service Exam scores by race, the City

26
in effect uses different cutoff scores on the basis of race. We

agree that the City’s hiring process violates the plain language of

section 2000e-2(l).

First, we must point out that our decision that the City’s

hiring process violates section 2000e-2(l) will stand even if on

remand the district court finds that the hiring process passes

scrutiny under the Equal Protection Clause. That is, even if the

process is “upheld as a valid method of affirmative action,”

Chicago Firefighters Local 2 v. City of Chicago, 249 F.3d 649, 656

(7th Cir. 2001), it nevertheless violates the specific prohibitions

of section 2000e-2(l). See id. (recognizing that the practice of

“banding” test scores is an acceptable form of affirmative action

under other Title VII provisions and the Equal Protection Clause,

but continuing on to determine whether that practice violated

section 2000e-2(l)).

Appellants insist that the City violates section 2000e-2(l)

when, pursuant to its hiring policy, it ranks test takers from

highest to lowest exam score, but then separates those scores

according to race and sex. The City responds, and the district

court held, that the hiring process does not violate the statute

because “[e]very applicant, black or white, ha[s] to score at least

a seventy-five to pass the Civil Service Exam.” Dean, slip op. at

20. This conclusion is incomplete, however, because it focuses

only on the initial portion of phase one of the City’s hiring

27
process instead of on the entire process. The City is correct that

all applicants are subject to the same initial requirement at phase

one -- a score of at least seventy-five on the Civil Service Exam.

Our analysis, however, cannot stop there because the City uses the

test scores again at another important step in the hiring process.

A passing score of seventy-five only makes applicants eligible for

further consideration. Later in the process the City again uses

the exam scores to choose which applicants will proceed to phase

two of the hiring process. The City separates applicants’ exam

scores by race and sex and selects the same number of blacks and

whites to proceed, starting with the highest exam score on each

segregated list.

This method of selection between phase one and phase two

violates the plain language of section 2000e-2(l) because it has

the practical effect of requiring different cutoff scores, based

solely on race and sex, for continuing further in the hiring

process. We see no reason to ignore a clear violation of section

2000e-2(l) between phase one and phase two simply because at the

outset of phase one the same cutoff score is required of all

applicants. Compliance with section 2000e-2(l) is required at all

times during employment activities carried out “in connection with

the selection or referral of applicants or candidates for

employment.” See 42 U.S.C. § 2000e-2(l).

We find that the City’s hiring process violates Title VII.

28
Therefore, we reverse the district court’s dismissal of Appellants’

Title VII claim.

IV. Appellants’ Louisiana Constitutional Claim

Appellants’ next contention is that the City’s hiring process

violates the Louisiana Constitution. Appellants point to Article

I, Section 3, which states not only that “[n]o person shall be

denied the equal protection of the Laws,” but also that “[n]o law

shall discriminate against a person because of race.” The district

court, after determining that the City’s hiring process survived

scrutiny under the United States Constitution, held that regardless

of whether the hiring process violates the Louisiana Constitution,

“Louisiana law must bow to federal law, which is the supreme law of

the land.” Dean, slip op. at 21. On appeal, the City simply

states that even if its hiring process violates the Louisiana

Constitution, the consent decree shields the City from liability

because it “preempts state law.” We disagree and find that the

district court erred in determining that preemption affords the

City any form of protection from possible violations of state law.

Clearly, had the City been required by federal law to

implement its hiring process to redress a past federal

constitutional violation, federal law would preempt the Louisiana

Constitution. See In re Birmingham Reverse Discrimination

Employment Litig., 833 F.2d 1492, 1501 (11th Cir. 1987). But that

is not the situation we face here. The City originally denied that

29
it had engaged in intentional discrimination and was not found to

be in violation of the United States Constitution. More

importantly, the City was never ordered by a federal court, nor

mandated by any other federal law, to enter into the consent

decree. Rather, the City did so voluntarily. Thus, in the eyes of

the law the City’s hiring process is nothing more than a voluntary

affirmative action program.

As the Eleventh Circuit has stated:

We perceive no reason for treating a consent decree
entered pursuant to a voluntary settlement differently
from a voluntary affirmative action plan. In both
instances, the employer has embarked on a voluntary
undertaking; we reject any notion that the
memorialization of that voluntary undertaking in the form
of a consent decree somehow provides the employer with
extra protection against charges of illegal
discrimination . . . . It should be emphasized that
there has been no judicial determination that the City is
liable for past discrimination . . . . Thus . . . we are
not presented with a case in which the defendant was
required by law to implement an affirmative action
program designed to remedy the effects of past
discrimination.

In re Birmingham Reverse Discrimination Employment Litig., 833 F.2d

at 1501 (11th Cir. 1987). We think the Eleventh Circuit’s

reasoning is sound. As far as preemption is concerned, a voluntary

consent decree has the same effect on state law as does a voluntary

affirmative action program--none.

Therefore, we need only decide whether the City’s practice of

separating applicants by race during its hiring process violates

the Louisiana Constitution. We think it is beyond dispute that it

30
does. Decisions of the Supreme Court of Louisiana bind us with

regard to the meaning of Louisiana constitutional provisions.

Those decisions make abundantly clear that Article I, Section 3 of

the Louisiana Constitution provides far greater protection against

racial discrimination than does its federal counterpart. See,

e.g., La. Associated Gen. Contractors, Inc. v. State, 669 So. 2d

1185, 1196 (La. 1996). Under the United States Constitution,

classifications based on race are permissible if they are narrowly

tailored to serve a compelling government interest. See Paradise,

480 U.S. at 166-67. However, under the Louisiana Constitution,

classifications based on race “shall be repudiated completely,

regardless of the justification.” La. Associated Gen. Contractors,

Inc., 669 So. 2d at 1198. Under Louisiana law, once it is

determined that a classification based on race has been drawn, the

inquiry is over--Article I, Section 3 of the Louisiana Constitution

has been violated. See id. Here, the City’s hiring process

unquestionably classifies according to race. The City separates

white and black firefighter applicants when deciding which

applicants will proceed to phase two of the hiring process. The

City’s actions violate Article I, Section 3 of the Louisiana

Constitution. Also, even if on remand the district court

determines that the consent decree survives strict scrutiny under

the United States Constitution, an outcome which is far from

certain, the Louisiana Constitution is not preempted because the

31
decree was entered into voluntarily. Therefore, we reverse the

district court’s dismissal of Appellants’ Louisiana constitutional

claim.

V. Appellants’ Louisiana Statutory Claim

Appellants’ final argument is that the City’s hiring process

violates a Louisiana anti-discrimination employment statute.

Appellants note that LA. REV. STAT. ANN. § 23:332(A)(2) (1998) makes

it unlawful for employers in Louisiana to “[i]ntentionally limit,

segregate, or classify . . . employees or applicants . . . in any

way which would deprive or tend to deprive any individual of

employment opportunities, or otherwise adversely affect his status

as an employee, because of the individual’s race, color, religion,

sex, or national origin.”

The district court granted summary judgment in favor of the

City dismissing this claim. We agree with the court’s ruling on

this claim because Appellants’ argument is foreclosed by the plain

language of another subsection of the statute they rely upon, which

provides that “[n]othing contained in [section 23:332] shall be

construed so as to create a cause of action against an employer .

. . for employment practices pursuant to any affirmative action

plan.” LA. REV. STAT. ANN. § 23:332(G) (emphasis added). The

statute make no distinction between valid and invalid affirmative

action plans. See id. Therefore, regardless of the outcome on

remand of Appellants’ remaining claim, the City’s practice of

32
classifying applicants according to race and sex does not violate

this statute. We affirm the district court’s dismissal of

Appellants’ Louisiana statutory claim.

CONCLUSION

Based upon the foregoing, we AFFIRM the district court’s

dismissal of Appellants’ Louisiana statutory claim; we REVERSE its

dismissal of Appellants’ equal protection claim and REMAND the case

for further factual development of the equal protection claim; and

we REVERSE its dismissal of Appellants’ Title VII and Louisiana

constitutional claims, and with respect to the Title VII and

Louisiana constitutional claims, we REMAND the case for further

proceedings concerning the entitlement of each individual Appellant

to relief.

AFFIRMED in part; REVERSED in part; and REMANDED for further

proceedings consistent with this opinion.

33