Brotherhood of Midwest Guardians, Inc. v. City of Omaha

McMILLIAN, Circuit Judge,

concurring in part and dissenting in part.

For the reasons discussed below, I concur in part and dissent in part. I concur in the majority opinion’s analysis in Part I discussing the proper interpretation of the word “goals” and agree that, at least in the specialized context of affirmative action plans and employment discrimination class actions, the word “goals” means numerical goals. I also note that, again in the specialized context of affirmative action plans, employment discrimination class actions and institutional reform litigation, the current word of choice for the general objectives of such litigation would appear to be “purpose,” or, more precisely, “basic purpose.” Rufo v. Inmates of Suffolk County Jail, — U.S.—,—, 112 S.Ct. 748, 762, 116 L.Ed.2d 867 (1992); see United States v. City of Miami, 2 F.3d 1497, 1503-1505 (11th Cir.1993).

I do not agree with the majority opinion’s analysis in Part II discussing what the numerical goals were and, accordingly, dissent from that part of the majority opinion. I would accept the parties’ interpretation of the numerical goal as mandating 9.5% black representation at each rank of the police force as opposed to 9.5% black representation in the police force overall. Unlike the majority opinion, I think the parties’ interpretation of the numerical goal is consistent with the interim goal set forth in paragraph 8(b) of the consent decree with respect to promotions. I cannot believe that the police department could satisfy the consent decree’s 9.5% goal if, for example, all or most of the black police officers were patrol officers and all or most of the supervisory officers were white.