concurring.
The plaintiffs, who complain of reverse discrimination by the City of Memphis, argue that the number of blacks in the lowest ranks of the police and fire departments has been artificially inflated. This is because the city administration interprets the consent decree as allowing the hiring of blacks based simply on their greater percentage in the general population of the county rather than on the lesser percentage of blacks in the labor pool who are qualified to be hired as officers. Thus the plaintiffs argue that a promotional ratio based on the percentages in the lowest ranks artificially inflates the number of black officers promoted. They argue that the consent decree is being unconstitutionally enforced and should be modified or terminated.
For two reasons there appears to be substance to this argument, and I agree with the court that the case should be remanded to the district court for trial.
First, entry level officers must have several special qualifications above the general labor force in Shelby County. For example, an officer must be a high school graduate in order to qualify, and the officer must not have a criminal record. We do not know at the present time how the criminal record statistics would affect the qualified labor pool. But the 1990 census shows that 85% of whites in Shelby County graduated from high school. Only 60% of blacks over 24 years of age are high school graduates and only 68% of blacks between 18 and 24 are high school graduates. Thus there is a substantial difference in the general labor pool and the qualified labor pool for fire and police officers. If the consent decree remains in effect, this difference must be either taken into account in hiring and promotion or a valid reason must be given for discarding it.
Second, the general population and the voting population of the City of Memphis is now predominantly black and African-Americans hold the levers of governmental power. The Mayor, the police chief and the majority of high level administrative officials of the city are black. Accordingly, there is a substantially greater risk that the continued use of racial hiring goals which greatly exceed the qualified labor pool in question will discriminate against whites. That is what the plaintiffs claim. We may not assume in such a situation that the required employment ratio is benign. History and common sense tell us that it is possible for blacks to discriminate against whites as well as vice ver-sa. The court has an obligation to ensure *1169that the decree is not being used to prefer the majority race in the city, whether black or white. Hence there must be a factual determination on this issue. Further there remains in this case a threshold question not addressed by the court below: whether neutral and objective employment standards should now be formulated to replace preferential hiring ratios based on color.
Because the plaintiffs have proffered substantial evidence that the hiring and promotional percentages now used by city officials give blacks a much greater opportunity for employment, and hence promotion, than the percentage of blacks and whites in the qualified labor pool would justify, I agree with the court that the case should go to trial on the merits and not be disposed of summarily without a trial. Also it seems clear that careful and intensive scrutiny should be required in communities where it is claimed that the race which controls the governmental machinery is placing the minority race at a clear disadvantage in hiring and promotion. It may well be that a trial will show that racially based hiring under the consent decree should now be terminated. The Equal Protection Clause does not allow the majority race in a city to use its governmental power to prefer its race over the minority race except in the most unusual and compelling circumstances. To hold otherwise would be to reinstitute racial discrimination, the constitutional wrong that the parties and the court below were seeking to remedy when the decree was originally entered.