United States v. Paradise

Justice Stevens,

concurring in the judgment.

In 1971, one year before the District Court found in this case that the State of Alabama had persistently maintained a deliberately segregated police force, this Court issued a unanimous opinion setting forth the guidelines for district judges in fashioning remedies to eliminate the effects of racial segregation in public schools. Swann v. Charlotte-Mecklenburg Bd. of Education, 402 U. S. 1 (1971). The central theme of that opinion is that race-conscious remedies are obviously required to remedy racially discriminatory actions by the State that violate the Fourteenth Amendment.

*190Because Swann explained the appropriate governing standard, it must have provided guidance to the District Court in this case and it should now guide our deliberations. Chief Justice Burger wrote:

“Once a right and a violation have been shown, the scope of a district court’s equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies.
“ ‘The essence of equity jurisdiction has been the power of the Chancellor to do equity and to mould each decree to the necessities of the particular case. Flexibility rather than rigidity has distinguished it. The qualities of mercy and practicality have made equity the instrument for nice adjustment and reconciliation between the public interest and private needs as well as between competing private claims.’ Hecht Co. v. Bowles, 321 U. S. 321, 329-330 (1944), cited in Brown [v. Board of Education, 349 U. S.], at 300.” 402 U. S., at 15.

In this case, the record discloses an egregious violation of the Equal Protection Clause. It follows, therefore, that the District Court had broad and flexible authority to remedy the wrongs resulting from this violation — exactly the opposite of the Solicitor General’s unprecedented suggestion that the judge’s discretion is constricted by a “narrowly tailored to achieve a compelling governmental interest” standard. Brief for United States 17.1

*191The notion that this Court should craft special and narrow rules for reviewing judicial decrees in racial discrimination cases was soundly rejected in Swann. Chief Justice Burger wrote for a unanimous Court:

“[A] school desegregation case does not differ fundamentally from other cases involving the framing of equitable remedies to repair the denial of a constitutional right. The task is to correct, by a balancing of the individual and collective interests, the condition that offends the Constitution.
“In default by the school authorities of their obligation to proffer acceptable remedies, a district court has broad power to fashion a remedy that will assure a unitary school system.” 402 U. S., at 15-16.

The Court was equally unambiguous in its rejection of the argument that a different standard of review is required when a remedial decree employs mathematical ratios.

“We see therefore that the use made of mathematical ratios was no more than a starting point in the process of shaping a remedy, rather than an inflexible requirement. From that starting point the District Court proceeded to frame a decree that was within its discretionary powers, as an equitable remedy for the particular circumstances. As we said in Green [v. County School Bd., 391 U. S. *192430 (1968),] a school authority’s remedial plan or a district court’s remedial decree is to be judged by its effectiveness. Awareness of the racial composition of the whole school system is likely to be a useful starting point in shaping a remedy to correct past constitutional violations. In sum, the very limited use made of mathematical ratios was within the equitable remedial discretion of the District Court.” Id., at 25.
“Absent a constitutional violation there would be no basis for judicially ordering assignment of students on a racial basis. All things being equal, with no history of discrimination, it might well be desirable to assign pupils to schools nearest their homes. But all things are not equal in a system that has been deliberately constructed and maintained to enforce racial segregation. The remedy for such segregation may be administratively awkward, inconvenient, and even bizarre in some situations and may impose burdens on some; but all awkwardness and inconvenience cannot be avoided in the interim period when remedial adjustments are being made to eliminate the dual school systems.” Id., at 28.
“The Court of Appeals, searching for a term to define the equitable remedial power of the district courts, used the term ‘reasonableness.’ In Green, swpra, this Court used the term ‘feasible’ and by implication, ‘workable,’ ‘effective,’ and ‘realistic’ in the mandate to develop ‘a plan that promises realistically to work, and ... to work now.’ On the facts of this case, we are unable to conclude that the order of the District Court is not reasonable, feasible and workable. However, in seeking to define the scope of remedial power or the limits on remedial power of courts in an area as sensitive as we deal with here, words are poor instruments to convey the sense of basic fairness inherent in equity. Substance, not semantics, must govern, and we have sought to sug*193gest the nature of limitations without frustrating the appropriate scope of equity.” Id., at 31.

A party who has been found guilty of repeated and persistent violations of the law bears the burden of demonstrating that the chancellor’s efforts to fashion effective relief exceed the bounds of “reasonableness.”2 The burden of proof in a case like this is precisely the opposite of that in cases such as Wygant v. Jackson Board of Education, 476 U. S. 267 (1986), and Fullilove v. Klutznick, 448 U. S. 448 (1980), which did not involve any proven violations of law.3 In such cases the governmental decisionmaker who would make race-conscious decisions must overcome a strong presumption against them. No such burden rests on a federal district judge who has found that the governmental unit before him is *194guilty of racially discriminatory conduct that violates the Constitution.

The relief that the district judge has a duty to fashion must unavoidably consider race. A unanimous Court held in North Carolina State Board of Education v. Swann, 402 U. S. 43 (1971), a case decided on the same day as Swann v. Charlotte-Mecklenburg Board of Education, that the State’s Anti-Busing Law, which prohibited assignment of any student on account of race or for the purpose of creating a racial balance in the schools, conflicted with the State’s duty to remedy constitutional violations. We observed:

“[T]he statute exploits an apparently neutral form to control school assignment plans by directing that they be ‘color blind’; that requirement, against the background of segregation, would render illusory the promise of Brown v. Board of Education, 347 U. S. 483 (1954). Just as the race of students must be considered in determining whether a constitutional violation has occurred, so also must race be considered in formulating a remedy. To forbid, at this stage, all assignments made on the basis of race would deprive school authorities of the one tool absolutely essential to fulfillment of their constitutional obligation to eliminate existing dual school systems.
“Similarly, the flat prohibition against assignment of students for the purpose of creating a racial balance must inevitably conflict with the duty of school authorities to disestablish dual school systems. As we have held in Swann, the Constitution does not compel any particular degree of racial balance or mixing, but when past and continuing constitutional violations are found, some ratios are likely to be useful starting points in shaping a remedy.” 402 U. S., at 45-46.

The District Court, like the school authority in North Carolina State Board of Education v. Swann, may, and in some instances must, resort to race-conscious remedies to *195vindicate federal constitutional guarantees. Because the instant employment discrimination case “does not differ fundamentally from other cases involving the framing of equitable remedies to repair the denial of a constitutional right,” Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S., at 15-16, and because there has been no showing that the District Judge abused his discretion in shaping a remedy, I concur in the Court’s judgment.4

Justice O’Connor’s dissenting opinion also advances the novel theory that in reviewing the validity of a federal district court’s remedial order, the Court must first decide whether the order is “ ‘supported by a compelling [governmental] purpose.’” Post, at 196 (quoting Wygant v. Jackson Board of Education, 476 U. S. 267, 274 (1986)). The substitution of the word “governmental” for the word “state” in the quotation from Wygant emphasizes the novelty of the suggestion that a test that may be appropriate for determining the constitutionality of state executive or legislative action should also be used in reviewing federal judicial decrees. In Wygant the Court was confronted with the question whether certain state *191action violated the Equal Protection Clause of the Fourteenth Amendment. Here the State’s violation of that Clause is established — the State’s purpose in maintaining an all-white police force was obviously illegitimate. In contrast, the federal purpose that is served by the District Court’s decree is to eliminate the consequences of the State’s pervasive, systematic, and obstinate discriminatory conduct. There is nothing in the District Court’s decree that is even arguably inconsistent with this federal purpose. Because the decree is neither “overinelusive” nor “underineonclusive,” the metaphor of narrow tailoring that is often used in considering the merits of claims based on the Equal Protection Clause simply does not fit the issue before the Court.

Inevitably, promotions of the white officers who have been beneficiaries of the past illegal conduct may be delayed even though they are “innocent victims” in the sense that they are not individually responsible for the past illegal conduct. But it is most incongruous to imply, as Justice O’Connor’s dissent does, that this impact on white “victims” requires that the Federal District Court’s decree be judged by the same standards as the State’s policy of discriminating against black employees in promotion and against black applicants in hiring. Given the violation of law disclosed by the record, the District Court’s use of a racial classification to remedy that violation was presumptively valid; in contrast, the State’s racial classification was presumptively invalid.

The law violator who would oppose a remedy imposed against him as itself a violation of the law does not stand in the same position as an innocent party; those whom the court has found in the wrong may not oppose a remedy on the ground that it would constitute a wrong if leveled at a nonparticipant in the litigation. “In fashioning a remedy, the District Court may, of course, consider the fact that its injunction may impinge upon rights that would otherwise be constitutionally protected, but those protections do not prevent it from remedying” the violations. National Society of Professional Engineers v. United States, 435 U. S. 679, 697-698 (1978). See also International Salt Co. v. United States, 332 U. S. 392, 400-401 (1947); Teachers v. Hudson, 475 U. S. 292, 309-310, n. 22 (1986) (“The judicial remedy for a proven violation of law will often include commands that the law does not impose on the community at large”) (citations omitted).

For reasons that are not entirely clear to me, Justice Powell assumes that the standard to be applied in reviewing the court-ordered action a State must take to correct its violations of the Equal Protection Clause is different when the violations take place in the administration of a public school system than when they occur in the operation of a public law enforcement agency. Ante, at 187, n. 2. Dismissing the inconvenience of being bused as a relatively inconsequential by-product of the remedial decree, Justice Powell suggests that desegregation decisions upholding the District Court’s broad remedial powers are less than fully applicable to this case; he seems to regard the possibility that some white troopers will have their promotions delayed, see ante, at 188-189, as mandating a different and more exacting standard of review.

I cannot agree that the applicability of the school desegregation cases in determining the validity of any particular remedial solution fashioned by a district Court and imposed on a State depends on detailed and inevitably imprecise calculations of hardship. For me the relevant fact in this case is that the remedial order was directed against a proven violator of the Constitution. Just as I believe that a uniform standard should govern our review of the merits of an equal protection claim, see Craig v. Boren, 429 U. S. 190, 211 (1976) (Stevens, J., concurring), so do I believe that a uniform standard should govern our review of all such decrees entered by district courts. Of course, different violations require different remedies, but they should be reviewed under the principles of equitable discretion set forth in the school desegregation cases. “[A] school desegregation case does not differ fundamentally from other cases involving the framing of equitable remedies to repair the denial of a constitutional right.” Swann v. Charlotte-Mecklenburg Bd. of Education, 402 U. S. 1, 15-16 (1971). The district court’s task in each case is to “be guided by equitable principles. Traditionally, equity has been characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs. These cases call for the exercise of the traditional attributes of equity power.” Brown v. Board of Education, *196349 U. S. 294, 300 (1955) (footnotes omitted). Thus, the remedial issue in these cases is dramatically different from the question whether a statutory racial classification can be justified as a response to a past societal wrong. See Fullilove v. Klutznick, 448 U. S. 448, 537-539 (1980) (Stevens, J., dissenting).