On Petition For Rehearing En Banc.
GIBSON, Circuit Judge.A panel of this court composed 'of Matthes, Chief Judge, Van Oosterhout, Senior Judge, and Eisele, District Judge from the Eastern District of Arkansas sitting by designation, in an opinion, authored by Judge Van Oosterhout,1 sustained the order and opinion of the Honorable Earl R. Larson, District Court of Minnesota, finding that the employment practices and procedures for determining qualifications of applicants for positions on the Minneapolis Fire Department were racially discriminatory in violation of the Equal Protection Clause of the Fourteenth Amendment and the Civil Rights Act of 1870, 42 U.S.C. § 1981, and approved a number of corrective practices ordered so as to eliminate all racially discriminatory practices; but disapproved that part of Judge Larson’s order providing for absolute minority preference in the employment of the next 20 persons to be hired by the department. The case was brought as a class action and relief was extended to minority groups as a class.
The panel opinion, while sustaining most of Judge Larson’s findings and orders granting affirmative relief, did not approve of the absolute preference in Fire Department employment to 20 minority persons who met the qualifications for the positions under the revised qualification standards established by the decree and held that the absolute preference order infringed upon the constitutional rights of white applicants whose qualifications are established to be equal or superior to the minority applicants. That panel held :
“Section 1981 and the Fourteenth Amendment by their plain and unambiguous language accord equal rights to all persons regardless of race. We believe that § 1981 and the Fourteenth Amendment proscribe any discrimination in employment based on race, whether the discrimination be against Whites or Blacks. Our view is supported by Griggs, supra, where it is held:
‘Congress did, not intend by Title VII, however, to guarantee a job to every person regardless of qualifications. In short, the Act does not command that any person be hired simply because he was for*328merly the subject of discrimination, or because he is a member of a minority group. Discriminatory preference for any group, minority or majority, is precisely and only what Congress has proscribed. What is required by Congress is the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification.’ 401 U.S. 424, 430-431, 91 S.Ct. 849, 853, 28 L.Ed.2d 158.”
A petition for rehearing en banc by the appellees was granted but limited solely to the issue of the appropriate remedy. The cause was resubmitted to the court en banc on briefs of the various parties and intervenors and without oral 'argument. The United States filed a brief as amicus curiae on behalf of the plaintiffs on the rehearing.
The facts are contained in the panel opinion and need not be repeated here. The fact of past racially discriminatory practices and procedures in employment by the Fire Department is accepted and clearly evidenced by the fact that of the 535 men in the Fire Department none are from minority groups.2 We are thus here concerned only with the appropriateness of the rernedy ordered by the District Court. (¡The absolute preference of 20 minority persons who qualify has gone further than any of the reported appellate court cases in granting preference to overcome the effects of past discriminatory practices and does appear to violate the constitutional right of Equal Protection of the Law to white persons who are superiorly qualified.^
The panel opinion has recognized the illegality of the past practices, has ordered those practices abandoned, and the affirmative establishment of nondiscriminatory practices and procedures. There is, as the panel pointed out, no claim or showing made that the plaintiffs were identifiable members of the class who had made prior applications for employment and were denied employment solely because of race. This latter situation could be remedied immediately by ordering the employment of such persons. However, in dealing with the abstraction of employment as a class, we are confronted with the proposition that in giving an absolute preference to a minority as a class over those of the white race who are either superiorly or equally qualified would constitute a violation of the Equal Protection Clause of the Fourteenth Amendment to the Constitution.
The defendants-appellants point out the mandatory requirements of the Minneapolis City and the Minnesota Veterans’ Preference Act (Minnesota Statute § 197.45). These requirements however must give way to the Supremacy Clause of Article 6 of the United States Constitution.
Mr. Justice Black, in speaking for a unanimous court (although Mr. Justice Harlan concurred on the basis of the Fifteenth Amendment rather than on the Fourteenth) in Louisiana v. United States, 380 U.S. 145, 85 S.Ct. 817, 13 L.Ed.2d 709 (1964), approved the suspension of Louisiana voting laws that had been administered discriminatorily against Negroes and held it was the affirmative duty of the district court to eliminate the discriminatory effects of past practices, stating, “We bear in mind that the court has not merely the power but the duty to render a decree which so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future.” 380 U.S. at 154, 85 S.Ct. at 822. It is apparent that remedies to overcome the effects of past discrimination may suspend valid state laws. United States v. Mississippi, 339 F.2d 679 (5th Cir. 1964); United States v. Duke, 332 F.2d 759 (5th Cir. 1963).
Admittedly the District Court has wide power sitting as a court of *329equity to fashion relief enforcing the congressional mandate of the Civil Rights Acts and the constitutional guarantees of the Equal Protection of the Law; and clearly, courts of equity have the power to eradicate the effects of past discriminations. Parham v. Southwestern Bell Telephone Co., 433 F.2d 421 (8th Cir. 1971). We are not here concerned with the anti-preference treatment section 703(j) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 (j),3 as this class action is predicated under § 1981 of the old Civil Rights Act and the provisions of the Fourteenth Amendment. ¿However, even the anti-preference treatment section of the new Civil Rights Act of 1964 does not limit the power of a court to order affirmative relief to correct the effects-of past unlawful practices?} United States v. IBEW, Local No. 38, 428 F.2d 144 (6th Cir.), cert. denied, 400 U.S. 943, 91 S.Ct. 245, 27 L.Ed.2d 248 (1970).
Although this case is not predicated upon Title VII of the Civil Rights Act of 1964 and most of the cases that have dealt with the issue of remedying past discriminatory practices along with prohibiting present discriminatory practices are under that Act, the remedies invoked in those cases offer some practical guidelines in dealing with this issue.
As the panel opinion points out most of these cases deal with discriminations to a specified individual who has been presently discriminated against on account of race, and the remedy is there easily applied as the individual who has been discriminated against can be presently ordered employed without running into the constitutional questions involved in granting preference to any one class over another. However, in United States v. Ironworkers Local 86, 443 F.2d 544 (9th Cir. 1971), cert. denied 404 U.S. 984, 92 S.Ct. 447, 30 L.Ed.2d 367 (1971) the Ninth Circuit approved the district court decree ordering building construction unions to offer immediate job referrals to previous racial discriminatees and also approved a prospective order requiring the unions to recruit sufficient blacks to comprise a 30 per cent membership in their apprenticeship programs. This was ordered in Seattle which had a black population of approximately 7 percent. See, United States v. Local No. 86, Int. Ass’n of Bridge S., D. and R. Ironworkers et al., 315 F.Supp. 1202 (W.D. Wash.1970).
In Local 53 of Int. Ass’n of Asbestos Workers v. Vogler, 407 F.2d 1047 (5th Cir. 1969), the trial court ordered the immediate admission into the union of three Negroes who were racially discriminated against in their application for membership and voided a local membership rule that in effect made the union a self-perpetuating nepotistic group, specifically ordering the union to develop objective criteria for membership and prospectively ordering the alternating of white and Negro referrals.
In United States v. Central Motor Lines, Inc., 325 F.Supp. 478 (W.D.N.C. 1970), the trial court issued a preliminary injunction requiring the motor carrier to hire six Negro drivers “promptly.” (apparently within two weeks from *330the date of the order), and that any future drivers hired were to be in an alternating ratio of one black to one white,
Cases arising from Executive Order #11246, prohibiting all contractors and subcontractors on federally financed projects from discriminating in their employment practices, have also upheld plans which establish percentage goals for the employment of minority workers. See Contractors Association of Eastern Pa. v. Secretary of Labor, 442 F.2d 159 (3d Cir. 1971) (upholding the “Philadelphia Plan” requiring minority employment goals in the construction trades ranging from 19 per cent-26 per cent); Joyce v. McCrane, 320 F.Supp. 1284 (D.N.J.1970) (requiring contractors to employ 30 per cent-37 per cent minority journeymen).
It is also appropriate to note that precedent from our own Circuit establishes that the presence of identified persons who have been discriminated against is not a necessary prerequisite to ordering affirmative relief in order to eliminate the present effects of past discrimination. In United States v. Sheet Metal Workers Local 36, 416 F.2d 123 (8th Cir. 1969), we required substantial changes in union referral systems. In connection with this holding, Judge Heaney noted:
“We recognize that each of the cases cited in n. 15 to support our position can be distinguished on the ground that in each case, a number of known members of a minority group had been discriminated against after the passage of the Civil Rights Act. Here, we do not have such evidence, but we do not believe that it is necessary. The record does show that qualified Negro tradesmen have been and continue to be residents of the area. It further shows that they were acutely aware of the Locals’ policies toward minority groups. It is also clear that they knew that even if they were permitted to use the referral system and become members of the union, they would have to work for at least a year before they could move into a priority group which would assure them reasonably full employment. In the light of this knowledge, it is unreasonable to expect that any Negro tradesman working for a Negro contractor or a nonconstruction white employer would seek to use the referral systems or to join either Local.” Id. at 132.
It may also be pointed out that in actions under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq., Congress has specifically granted authority to the trial courts to “order such affirmative action as may be appropriate, which may include * * * hiring of employees * * 42 U.S.C. § 2000e — 5(g) (emphasis added).
CNone of the remedies ordered or approved in the above cases involved an absolute preference for qualified minority persons for the first vacancies appearing in an employer’s business, in contrast to the remedy ordered in the instant case. The absolute preference ordered by the trial court would operate as a present infringement on those non-minority group persons who are equally or superiorly qualified for the fire fighter’s positions; and we hesitate to advocate implementation of one constitutional guarantee by the outright denial of another. Xei^we acknowledgetlm«leJgitimacy of erasinglhgTffects'óf past racially. discriiainatQryr~m^cticés^~Xoütsiáña v. United States, supra. (To accommodate these conflicting considerations, we think some reasonable ratio for hiring minority persons who can qualify under the revised qualification standards is in order for a limited period of time, or until there is a fair approximation of minority representation consistent with the population mix in the area/\ Such a procedure does not constitute a “quota” system because as soon as the trial court’s order is fully implemented, all hirings will be on a racially nondiscriminatory basis, and it could well be that many more minority persons or less, as compared to the population at large, over a long period of time would apply and
*331qualify for the positions. ---------, .... a method of presently eliminating the effects of past racial discriminatory practices and in making meaningful in the immediate future the constitutional guarantees against racial discrimination, more than a token representation should be afforded. For these reasons we believe the trial court is possessed of the However, as^ authority to order the hiring of 20 quali-^j fied minority persons, but this should be \ done without denying the constitutional j rights of others by granting an absolute J preference.
Ideas and views on ratios and procedures may vary widely but this issue should be resolved as soon as possible. In considering the equities of the decree and the difficulties that may be encountered in procuring qualified applicants from any of the racial groups, we feel that it would be in order for the district! court to mandate that one out of every three persons hired by the Fire Department would be a minority individual whq qualifies until at least 20 minority per-, sons have been so hired. /S
Fashioning a remedy in these eases is of course a practical question which may differ substantially from ease to case, depending ■ on the circumstances. In reaching our conclusion in the instant ease, we have been guided to some extent by the following considerations:
(1) It has now been established by the Supreme Court that the use of mathematical ratios as “a starting point in the process of shaping a remedy” is not unconstitutional and is “within the equitable remedial discretion of the District Court.” Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 25, 91 S.Ct. 1267, 1280, 28 L.Ed.2d 554 (1971).
(2) Given the past discriminatory hiring policies of the Minneapolis Fire Department, which were well known in the minority community, it is not unreasonable to assume that minority persons will still be reluctant to apply for employment, absent some positive assurance that if qualified they will in fact be hired on a more than token basis.
(3) As the panel opinion noted^/iesting procedures required to qualify applicants are undergoing revision and validation at the present time. As the tests are currently utilized, applicants must attain a qualifying score in order to be certified at all. They are then ranked in order of eligibility according to their test scores (disregarding for present purposes the veteran’s preference). Because of the absence of validation studies on the record before us, it is speculative to assume that the qualifying test, in addition to separating those applicants who are qualified from those who are not, also ranks qualified applicants with precision, statistical válidity, and predictive significance. See generally, Cooper & Sobol, Seniority and Testing under Fair Employment Laws: A General Approach to Objective Criteria of Hiring and Promotion, 82 Harv.L.Rev. 1598, 1637-1669 (1969). Thus, a hiring remedy based on an alternating ratio such as we here suggest will by no means necessarily result in hiring less qualified minority persons in preference to more qualified white persons.,/
(4) While some of the remedial orel ders relied on by the plaintiffs and the Government ordered one to one ratios, they appear to be in areas and occupations with a more substantial minority population than the Minneapolis area. Thus we conclude that a one to two ratio would be appropriate here, until 20 minority persons have been qualified hired.
The panel opinion is adopted as the opinion of the court en banc with the exception of that part relating to the absolute preference.
The District Court properly retained jurisdiction pending full implementation of its decree and the remedy. Cause is remanded for further proceedings consistent with this opinion.
All costs of the appeal are to be assessed three-fourths against the defend*332ant-appellants and one-fourth against the plaintiffs-appellees.
. No. 71-1181, September 9, 1971.
. The total minority population of the Minneapolis area was 6.44 per cent in 1970; black population 4.37 per cent.
. 42 U.S.C. § 2000e-2(j) provides as follows :
“Nothing contained in this subchapter shall be interpreted to require any employer, employment agency, labor organization, or joint labor-management committee subject to this subchapter to grant preferential treatment to any individual or to any group because of the race, color, religion, sex, or national origin of such, individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any race, color, religion, sex, or national origin employed by any employer, referred or classified for employment by any employment agency or labor organization, admitted to membership or classified by any labor organization, or admitted to, or employed in, any apprenticeship or other training program, in comparison with the total number or percentage of persons of such race, color, religion, sex, or national origin in any community, State, section, or other area, or in the available work force in any community, State, section; or other area.”