United States Court of Appeals
For the First Circuit
No. 02-1727
JOSEPH E. QUINN, ET AL.,
Plaintiffs, Appellants,
v.
CITY OF BOSTON, ET AL.,
Defendants, Appellees,
NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE,
Intervenor, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Selya, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lipez, Circuit Judge.
Harold L. Lichten, with whom Pyle, Rome, Lichten & Ehrenberg,
P.C. was on brief, for appellants.
Christine M. Roach, with whom Roach & Carpenter, P.C. and
Merita A. Hopkins, Corporation Counsel, were on brief, for
defendants-appellees.
Toni G. Wolfman, with whom Foley Hoag LLP, Nadine M. Cohen,
Maricia Woodham, and Lawyers Committee for Civil Rights Under Law
were on brief, for intervenor-appellee.
March 27,2003
SELYA, Circuit Judge. For over a quarter of a century,
the hiring of firefighters in the City of Boston (the City) has
taken place in the albedo of a federal court consent decree
designed to remedy the effects of past discrimination against
African-Americans and Hispanics. On April 11, 2001, five
candidates for employment (the Candidates) brought suit in the
federal district court alleging that the City had discriminated
against them on the basis of race when hiring new firefighters in
the fall of 2000. The City defended its hiring practices as
compliant with, and compelled by, the terms of the consent decree.
The district court granted summary judgment in the defendants'
favor. See Quinn v. City of Boston, 204 F. Supp. 2d 156 (D. Mass.
2002). The Candidates appeal. For the reasons that follow, we
reverse the judgment and remand to the district court for further
proceedings consistent with this opinion.
I. BACKGROUND
In considering an appeal from a grant of summary
judgment, this court, like the trial court, normally will "view the
entire record in the light most hospitable to the party opposing
summary judgment, indulging all reasonable inferences in that
party's favor." Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir.
1990). Here, however, the facts upon which our decision turns are
undisputed.
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In the early 1970s, two suits were brought against a
number of municipalities subject to the Massachusetts Civil Service
law (now codified at Mass. Gen. Laws ch. 31, §§ 1-77). The suits
alleged that the municipalities engaged in discriminatory
recruitment and hiring practices whilst staffing their respective
fire departments. These actions culminated in the entry of an
omnibus consent decree that influenced the manner in which the
affected municipalities could recruit and hire firefighters.
Boston Chapter, NAACP, Inc. v. Beecher, 371 F. Supp. 507, 520-23
(D. Mass. 1974) (Beecher I). The decree was affirmed on appeal.
Boston Chapter, NAACP, Inc. v. Beecher, 504 F.2d 1017, 1028 (1st
Cir. 1974) (Beecher II), cert. denied, 421 U.S. 910 (1975). It has
been in effect for nearly thirty years.
The Beecher decree — courts consistently have used that
phrase to include the original decree and subsequent orders entered
to fine-tune it, see, e.g., Mackin v. City of Boston, 969 F.2d
1273, 1274 (1st Cir. 1992), and we emulate that example —
circumscribed the hiring of firefighters in much of Massachusetts
over the ensuing years. Its history up to 1992 is well chronicled
in the case law. See, e.g., id. at 1274-75. We urge readers who
thirst for a more complete understanding of the genesis and
operation of the decree to consult that opinion. For present
purposes, we are content to note that the Beecher decree was
intended to rectify a situation in which many fire departments
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within Massachusetts had remained lily-white, or nearly so, despite
dramatic increases in the African-American and Hispanic
populations. The decree sought to accomplish its goal by
affirmative action, i.e., by fostering a hiring regime that
accorded race-based preferences to blacks and Spanish-surnamed
individuals.1 Id. at 1274 n.2. Each of the affected fire
departments was to remain subject to the strictures of the decree
(and, thus, to accord race-based preferences) until such time as
that department met a general benchmark established by the decree:
the attainment of parity (or, at least, rough parity). See Beecher
I, 371 F. Supp. at 523 (providing for release from the decree "[a]s
a city or town achieves a complement of minorities commensurate
with the percentage of minorities within the community"). The
meaning of this criterion, and the manner in which it is to be
gauged, are questions that have permeated this litigation from the
outset. Not surprisingly, those questions are central to the case
at hand.
Unlike some forty-five other fire departments that
heretofore have met the goals of the decree and gained release from
1
Throughout the litigation, the parties have used the term
"blacks" as opposed to "African-Americans." For historical
coherence, we henceforth will adhere to that usage. For ease in
reference, however, we elect to use the term "Hispanics" as a proxy
for the more cumbersome "Spanish-surnamed individuals." Finally,
we use the words "minority" and "minorities" to refer to blacks and
Hispanics collectively, and the word "non-minority" to encompass
all other persons.
-4-
its constraints, the Boston Fire Department (BFD) has operated
under the auspices of the Beecher decree since 1974. A decade ago,
a group of non-minority men, aspiring to appointments as
firefighters within the BFD, endeavored to bring the City out from
under the umbrella of the decree. See Mackin, 969 F.2d at 1275.
Although we affirmed the district court's rejection of that
attempt, we noted that the decree was not meant to operate in
perpetuity. To the contrary, it would remain in force as to any
particular municipality only until its stated goal had been
achieved. Id. at 1278. A decade has passed, but — despite
increased diversity within the BFD — the City still hires
firefighters in accordance with the Beecher decree.
That brings us to the events giving rise to the instant
case. In 1998, the Candidates — Joseph Quinn, Sean O'Brien, Robert
Dillon, Joseph Sullivan, and Roger Kendrick, Jr. — aspired to
firefighter appointments in the BFD. All five are white males; as
was required, they identified themselves as non-minority
applicants. Each took the firefighter entrance examination
administered by the Massachusetts Division of Personnel
Administration (MDPA) and scored ninety-nine out of a possible one
hundred points.
The Candidates' scores satisfied the threshold criterion
for employment. Along with all other qualifying applicants, they
were placed on a civil service eligibility list in rank order.
-5-
This ranking made allowance for various statutory preferences
(e.g., veterans, residents, children of firefighters killed or
disabled in the line of duty), ceding pride of place to the holders
of such preferences in accordance with state law (even if those
persons had earned lower test scores than other qualified
candidates). See Mass. Gen. Laws ch. 31, §§ 26, 40. None of these
statutory preferences involve race or ethnicity, and none of them
are challenged in this proceeding.
Preparing to hire fifty new firefighters, the BFD
requested a certified list of eligible applicants from the
Massachusetts Human Resources Division (HRD). The HRD selected
individuals in rank order (based on statutory preferences and test
scores) and grouped them into a putative "hiring class." After
screening out those individuals who stumbled over a variety of
race-neutral preconditions (such as drug tests and physical
examinations), the HRD composed a slate of "hiring pairs" by
placing the highest ranking minority member and the highest ranking
non-minority member into a group of two and then repeating the
process until the hiring class had been exhausted.
In November 2000, the BFD, following this rank order,
chose twenty-five pairs from the eligibility list and appointed
those fifty individuals as entry-level firefighters.2 The
2
The parties skirmish over both the construction of the
eligibility list and what deviations, if any, the BFD entertained
from it. Although these disputes ultimately may prove material in
-6-
Candidates were not among those selected. Although each received
a letter from the BFD stating that the vacancies had been filled by
persons who outranked him on the certification list, the record
suggests that, had the BFD followed a strict rank-order selection
process (without any consideration of race or ethnicity), the
Candidates (or some of them) likely would have been in the top
fifty.
The Candidates (other than Kendrick, who joined the
litigation at a later date) then sued the City. They argued that
the City impermissibly had used preferences based on race and
ethnicity to rank minorities ahead of them on the eligibility list.
In the Candidates' view, this constituted discrimination in
violation of the Fourteenth Amendment to the United States
Constitution and 42 U.S.C. § 1983 (count 1), Mass. Gen. Laws ch.
151B, § 4 (count 2), and 42 U.S.C. § 2000e et seq. (count 3). The
Candidates also attacked another aspect of the hiring process; they
argued that requiring them to submit to medical examinations
without a conditional offer of employment violated both federal and
state law (counts 4-6).3 The district court granted the motion of
addressing the relief to which the Candidates may be entitled, see
infra Part III(E), we leave them unresolved for purposes of this
appeal.
3
These counts are not in issue on this appeal, see infra Part
II, and we therefore omit any detailed discussion of them.
-7-
the Boston Chapter of the NAACP to intervene as a party defendant.
See Fed. R. Civ. P. 24.
The Candidates moved for summary judgment on the first
three counts of their complaint or, in the alternative, for a
preliminary injunction forbidding the City from filling at least
five firefighter positions pending a resolution of the action.
They maintained, among other things, that the City should not have
applied the Beecher decree to the November 2000 hiring cycle
because, by that time, the City had achieved parity in the
firefighter force (and, therefore, had met the benchmark for
release from the strictures of the decree). The defendants did not
controvert the material facts, but, rather, opposed this motion as
a matter of law and cross-moved for summary judgment. The district
court denied the Candidates' motion and granted summary judgment
for the defendants on counts 1 through 3. This appeal followed.
Counts 4 through 6 remain pending before the district court.
II. APPELLATE JURISDICTION
It is too familiar a proposition to require citation of
authority that a federal court may not act beyond the scope of its
jurisdiction. As a logical corollary, parties cannot confer
subject matter jurisdiction on a federal court by waiver or
consent. See Prou v. United States, 199 F.3d 37, 42 (1st Cir.
1999); United States v. Horn, 29 F.3d 754, 767-68 (1st Cir. 1994).
Consequently, when a court senses a potential lack of subject
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matter jurisdiction, it ought to inquire further regardless of
whether the parties have raised the issue. BIW Deceived v. Local
S6, 132 F.3d 824, 828 (1st Cir. 1997). We must conduct such an
inquiry here.
In the usual case, an appeal must await the entry of a
final judgment, commonly regarded as a judgment that fully disposes
of all claims asserted in the action. See Curtiss-Wright Corp. v.
Gen. Elec. Co., 446 U.S. 1, 8 (1980); Spiegel v. Trustees of Tufts
Coll., 843 F.2d 38, 42 (1st Cir. 1988); see also 28 U.S.C. § 1291.
There are, however, exceptions to the classic final judgment rule.
One such exception, embodied in Rule 54(b) of the Federal Rules of
Civil Procedure, allows the immediate entry of a partial final
judgment as to fewer than all the claims in a multi-claim action
"upon an express determination that there is no just reason for
delay." The district court made such a determination here and
directed that a separate and final judgment enter as to counts 1
through 3.
Despite this explicit direction, a jurisdictional problem
looms. The law is firmly established in this circuit that a rote
recital of Rule 54(b)'s talismanic phrase is not enough, in and of
itself, to trump the wonted application of the final judgment rule.
See Spiegel, 843 F.2d at 42 (endorsing the "long-settled and
prudential policy against the scattershot disposition of
litigation"). To warrant recourse to the special procedure
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envisioned by Rule 54(b), the district court typically must make an
individualized assessment of the desirability and effect of an
immediate appeal. Id. at 42-43. Thus, if a district court wishes
to enter a partial final judgment on the ground that there is no
just reason for delay, it should not only make that explicit
determination but should also make specific findings and set forth
its reasoning. See id.
We have warned that the parties have an obligation to
bring this requirement to the district court's attention. See id.
at 44 n.5. In this instance, the parties did not fulfill this
obligation, and the court neither made the requisite findings nor
explicated the reasons underlying its Rule 54(b) certification.
Although this deviation from preferred practice is
troubling, it is not necessarily fatal. We have noted that there
are "infrequent instances" in which the record, on its face, makes
it sufficiently apparent that the circumstances support an appeal
from a partial judgment. Id. at 43 n.4. This is such a case.
Counts 1 through 3 of the complaint deal with the
obligations and protections afforded by the Beecher decree. In
contrast, counts 4 through 6 have very little to do with the decree
(and nothing to do with race or ethnicity). Moreover, one of the
principal parties — the NAACP — has no knowledge about (and, for
aught that appears, no interest in) the claims still pending in the
lower court. Given the discrete nature of the two sets of claims,
-10-
the summary judgment decision appears to be "final in the sense
that it is an ultimate disposition of . . . individual claim[s]
entered in the course of a multiple claims action." Curtiss-
Wright, 446 U.S. at 7 (internal quotation marks omitted).
Equally as important, the proof needed to establish the
allegations of counts 1 through 3 is materially different from the
proof needed to establish the allegations of counts 4 through 6.
By the same token, the legal issues are separate and distinct.
Moreover, if the Candidates prevail on one or more of the first
three counts and obtain satisfactory relief, counts 4 through 6 may
well be rendered moot. This concatenation of circumstances means
that, in all probability, there will be no significant duplication
of effort in litigating one set of claims to a conclusion and then
addressing the remaining set of claims. Such a lack of overlap
strongly supports the finding of no just reason for delay (and,
thus, the entry of a partial final judgment under Rule 54(b)).
See, e.g., Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 580
(1st Cir. 1994); Feinstein v. Resolution Trust Corp., 942 F.2d 34,
40 (1st Cir. 1991).
The most important factor counseling in favor of allowing
an immediate appeal in this case is the public interest. As a
practical matter, a final resolution of the issues raised in counts
1 through 3 will have a broad impact on the future of all
applicants for firefighter positions in the City of Boston. This
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is a vital concern, as hiring is ongoing. The district court
recognized this consideration when it agreed to render an expedited
decision on counts 1 through 3. See Quinn, 204 F. Supp. 2d at 157
n.3. In short, the nature of the issue calls out for immediate
resolution: time is of the essence if for no other reason than
that race-based hiring preferences inevitably shift some of the
burden of remediation to innocent persons, Wygant v. Jackson Bd. of
Educ., 476 U.S. 267, 280-81 (1986) (plurality op.), and thus should
not remain in place for any longer than necessary to alleviate the
effects of past discrimination. See Regents of the Univ. of Cal.
v. Bakke, 438 U.S. 265, 308 (1978) (plurality op.) (cautioning that
such "remedial action [must] . . . work the least harm possible").
To sum up, the "findings" requirement that we have
superimposed on Rule 54(b) is important, but it is not to be
applied woodenly. When the record and the interests of justice
permit, we have on occasion relaxed the requirement. See, e.g.,
Maldonado-Denis, 23 F.3d at 580-81; Feinstein, 942 F.2d at 40.
Given the factors enumerated above — especially the substantial
public interest that attaches to an expeditious resolution of
whether the Beecher decree should continue to constrain the BFD's
hiring practices — we conclude that this is one of the rare cases
in which, despite the absence of detailed district court findings,
the conditions for the use of Rule 54(b) effectively have been met.
Accordingly, we have jurisdiction over the Candidates' appeal.
-12-
III. ANALYSIS
Having assumed jurisdiction, we turn to the merits of the
appeal. We divide our discussion into five segments. First, we
frame the issue. We next describe how a court is to assess whether
the release point of the Beecher decree — parity — has been
achieved, outlining the required comparison and delineating how to
arrive at its component parts. Then, we do the mathematics.
Finally, we address the question of relief.
A. Framing the Issue.
Parity (or, at least, rough parity) is the key that
unlocks the restrictions of the Beecher decree as to a particular
community. The central issue in this appeal involves how parity
should be calculated for that purpose. The parties agree that the
relevant time frame is November of 2000. They also agree as to
what sources of data are appropriate for use in this context; all
parties accept the City's breakdown of the BFD's complement as of
the relevant dates and cite data derived from the 2000 census to
establish the appropriate labor pool. Their dispute revolves
around what categories of this data govern the measurement of
parity. The controlling algorithm has two components. One (which
we shall call the first variable) relates to how one measures
minority penetration within a particular fire department. The
other (which we shall call the second variable) relates to how one
measures minority representation in the community as a whole.
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As to these points, the Candidates argue that, under the
Beecher decree, the first variable should be limited to the
percentage of firefighters in the BFD (not including officers).
This should be compared to the second variable, which they envision
as the percentage of minorities in the City's employment-eligible
population. On the other hand, the City and the intervenor contend
that the first variable should represent the percentage of
minorities in the BFD as a whole (including officers) and that the
second variable should comprise the percentage of minorities in
Boston's overall population.
The district court concluded that the doctrine of stare
decisis dictated the composition of both variables. In the court's
view, that doctrine required measuring parity by comparing the
percentage of minorities in all ranks within the BFD to the
percentage of minorities in the City's overall population. Quinn,
204 F. Supp. 2d at 161 (accusing the Candidates of "us[ing] a
different statistical method than the one used in the Beecher
decree"). Since this calculation did not show that parity had been
attained — the percentage of minorities within the BFD, including
all ranks, was 31.5%, whereas the percentage of minorities in the
overall population was slightly over 38% — the court granted the
City's motion for summary judgment. Id. at 163.
We address the nature of the two variables in the next
two sections of this opinion. Before doing so, however, we pause
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to mention two sets of legal principles. First, because this
litigation challenges a judicial decree affording race-based
relief, any interpretation of the decree or any application of it
in practice must survive strict scrutiny. See Adarand
Constructors, Inc. v. Pena, 515 U.S. 200, 235 (1995) ("Federal
racial classifications, like those of a State, must serve a
compelling governmental interest, and must be narrowly tailored to
further that interest."); Stuart v. Roache, 951 F.2d 446, 449 (1st
Cir. 1991) (concluding that all race-based classifications must
pass strict scrutiny). This standard obliges an inquiring court to
make a binary finding that the race-based relief is not only
justified by a compelling governmental purpose but also narrowly
drawn to fit the contours of that purpose. Mackin, 969 F.2d at
1275; Stuart, 951 F.2d at 449.
Second, the district court ruled at the summary judgment
stage. The role of summary judgment is to pierce the boilerplate
of the pleadings and provide a means for prompt disposition of
cases in which no trialworthy issue exists. See Suarez v. Pueblo
Int'l, Inc., 229 F.3d 49, 53 (1st Cir. 2000). This device should
be employed only when 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
material fact and that the moving party is entitled to a judgment
as a matter of law." Fed. R. Civ. P. 56(c). We review an order
-15-
granting summary judgment de novo. Suarez, 229 F.3d at 53. This
non-deferential review is particularly appropriate where, as here,
the district court's grant of summary judgment is based on its
application of abstract principles of law to essentially
uncontradicted facts. See Plumley v. S. Container, Inc., 303 F.3d
364, 369 (1st Cir. 2002).
B. The First Variable.
The district court concluded that the first variable to
be used for measuring parity under the Beecher decree was the
percentage of minority firefighters in the BFD as a whole. The
court did not reach this conclusion through independent analysis,
but, rather, premised it on the assumption that this issue had been
fully litigated and settled in earlier proceedings. See Quinn, 204
F. Supp. 2d at 162. Although we appreciate the district court's
sensitivity to the role of precedent, an examination of the prior
decisions touching upon the Beecher decree refutes the court's
assumption.
To the extent that the Beecher I court compared relative
racial representation using quantitative data, it did so only to
determine proper placement of the burden of proof as to what
discriminatory effects could be attributed to the defendants'
preexisting recruitment and hiring practices. See 371 F. Supp. at
514, 518-20. Thus, Beecher I did not mandate a particular parity-
measuring formula for future use. That omission is understandable:
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the minuscule number of minorities in the affected fire departments
at the time of the original Beecher decree negated any need for
precise definition of how to measure anticipated minority
penetration.4
This court's initial affirmance of the Beecher decree is
unhelpful on this point. In resolving that appeal, we stated that
the Beecher decree would "remain[] in force, for each local fire
department, until that department attains sufficient minority fire
fighters to have a percentage on the force approximately equal to
the percentage of minorities in the locality," Beecher II, 504
F.2d at 1027. This statement begs the question of who is a
"firefighter."
Our subsequent opinion in Mackin likewise left open the
issue of how to measure parity. That case rejected an argument
that the second variable was the racial composition of the City as
it existed in 1974 (when the Beecher decree was first entered).
Mackin, 969 F.2d at 1276. We disposed of that argument without
ruling on the significance of the figures presented vis-à-vis the
composition of the first variable. See id. Elsewhere in that
opinion, we addressed an overbreadth challenge and held that the
decree continued to survive strict scrutiny. Id. at 1278. In the
process, we cited the language of the decree itself as an indicium
4
By way of illustration, the BFD had a minority complement at
the time of less than 1%, while Boston had a minority population of
approximately 23%. Beecher I, 371 F. Supp. at 514.
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of its limited life. See id. (acknowledging that the decree would
"remain[] in force only until its requirements have been met").
Seen in this light, any elliptical references in Mackin as to how
parity might be measured cannot be deemed a holding.
Our determination that the district court erred in
concluding that stare decisis supplies an answer to the question of
how the first variable should be constructed brings us back to
square one. While we recognize that "district courts enforcing
public law consent decrees have, in general, broad discretion in
determining such matters as whether the objectives of the decree
have been substantially achieved," Navarro-Ayala v. Hernandez-
Colon, 951 F.2d 1325, 1337 (1st Cir. 1991), the court below did not
exercise any such discretion. Instead, it offered its
interpretation of judicial precedents dealing with the Beecher
decree. Having found that interpretation wanting, we owe no
particular deference to the district court's conclusion. See
Wessmann v. Gittens, 160 F.3d 790, 795 (1st Cir. 1998).
If a district court's adjudication of a public sector
consent decree does not warrant deference, "[o]rdinary contract
principles apply" to the same extent as they apply to other consent
decrees. Navarro-Ayala, 951 F.2d at 1339. This is especially true
when, as now, the question involves determining the parties'
original intent and, concomitantly, the scope of the arrangement to
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which they initially consented.5 Id. "Parties to a consent decree
are entitled to know that . . . [it] will not be treated as a mere
entering wedge which . . . gives a district court untrammeled
discretion to increase" the depth and breadth of judicial
supervision. Id. at 1339 n.17.
Against this backdrop, we turn to the parties' competing
interpretations of the term "firefighter." As said, the Candidates
view that term as encompassing only the lowest rank, that is,
entry-level members of the BFD.6 In contradistinction, the
defendants view the term as encompassing all uniformed BFD
personnel, including officers. In the abstract, it may seem
possible to stretch the term "firefighter" to fit the defendants'
vision — but this case does not deal with abstractions. Terms in
a consent decree cannot be construed in a vacuum; they must instead
5
Our dissenting colleague chastises us for giving the
Candidates too much credit. He says that the Candidates do not
argue that the parties' original intent encompassed only the entry-
level rank. That is literally true, but it overlooks the fact that
the Candidates place the scope of the decree squarely at issue and
argue that constitutional principles require such an
interpretation. To address that argument, our analysis necessarily
begins with a "determination of the parties' intent when they
entered into the stipulation." Navarro-Ayala, 951 F.2d at 1339.
6
Throughout, all references to "entry-level" positions should
be understood to mean post-probationary non-officer positions.
This qualification is compelled by explicit language in the Beecher
decree enjoining "further certifications of permanent appointments
. . . to the position of firefighter" until certain requirements of
the decree are met. Beecher I, 371 F. Supp. at 521 (emphasis
supplied). That reference is reinforced by language in the decree
that differentiates between permanent and provisional appointments.
Id.
-19-
be read in the context of the decree as a whole. See Newport Plaza
Assocs. v. Durfee Attleboro Bank, 985 F.2d 640, 646 (1st Cir.
1993); see generally 5 Arthur L. Corbin, Corbin on Contracts §
24.21, at 204 (Joseph M. Perillo rev. ed. 1998). From that coign
of vantage, the Candidates' definition is much more compelling.
The litigation underlying the Beecher decree arose out of
discriminatory practices in recruitment and hiring into entry-level
positions. See Beecher I, 371 F. Supp. at 509 (describing the
focal point of the case as the municipalities' "overall hiring
policies for the position of firefighter"). Consistent with this
focus, the district court made specific findings of discriminatory
practices in recruitment and hiring, and the decree was tailored to
counteract the effects of that discrimination. Id. at 520. This
historical perspective sheds considerable light on the meaning of
the term "firefighter" as used in the Beecher decree. Logically,
the parties must have intended that term to refer to the class of
jobs open to external hiring: entry-level firefighter positions.
See Fleet Nat'l Bank v. H&D Entm't, Inc., 96 F.3d 532, 539 (1st
Cir. 1996) (interpreting terms of a settlement agreement in light
of the aim of the litigants at the time of settlement); see
generally 5 Corbin, supra § 24.20, at 193. Only by interpreting
the term "firefighter" in that manner is it possible to harmonize
the wording of the decree with its evident purpose.
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Other language in the decree supports this reading. The
decree's first paragraph zeroes in on entry-level positions: it
enjoins activities that "discriminat[e] against any applicant or
potential applicant for employment." Beecher I, 371 F. Supp. at
521. The decree purports to regulate the recruiting, certifying,
and appointing of entry-level personnel and specifically refers to
this three-part process as the "hiring procedure." See id. at 522.
Subsequent amendments, such as the interim consent decrees entered
on April 17, 1975, and November 25, 1975, continue this emphasis on
recruitment and hiring for entry-level positions.
Custom and usage within an affected industry or workplace
can be important aids to the construction of a contract or consent
decree. See, e.g., Boston Police Superior Officers Fed'n v. City
of Boston, 147 F.3d 13, 17-18 (1st Cir. 1998) (interpreting terms
with otherwise broad usage narrowly according to usage within the
relevant profession); Smart v. Gillette Co. Long-Term Disab. Plan,
70 F.3d 173, 179 (1st Cir. 1995) (noting that "usages of trade" are
relevant to interpreting terms of a contract). Here, the usage of
the BFD supports the Candidates' definition of the term
"firefighter."
In the court below, the evidence showing the composition
of the BFD differentiated the various ranks by specific title.
These records consistently referred to the entry-level rank as
"Firefighter" (sometimes written as "Fire Fighter" or "Fire
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fighter"). Corresponding to that term, the evidence showed the
number of persons serving in the entry-level rank, broken down by
race and ethnicity. That evidence referred to the other ranks —
the officers — by such titles as "Fire Lieutenant," "Fire Captain,"
and "District Fire Chief," giving the racial and ethnic composition
of each such rank. This indicates that, within the BFD, the term
"firefighter" carries with it specific duties, responsibilities,
pay, and privileges.
Lexigraphic insights are frequently helpful in
determining the meaning of specific words in consent decrees. See,
e.g., Guilday v. Dubois, 124 F.3d 277, 285-86 (1st Cir. 1997).
Here, the mine-run of dictionary definitions tends to support the
Candidates' version of the disputed term. A firefighter is said to
be "one who fights fires as a member of a municipal fire
department," Webster's Third New Int'l Dictionary 855 (1993)
(internal dictionary symbols omitted), or "a person who fights
destructive fires," Random House Dictionary of the English Language
722 (2d ed. 1987), or, simply, "a person who fights fires,"
Merriam-Webster On-Line Dictionary (2002), at http://www.m-
w.com/home.htm. These definitions uniformly emphasize the
principal activity that firefighters perform. They show quite
clearly that the term "firefighter," in its ordinary sense, applies
more naturally to those whose exclusive province is attempting to
extinguish conflagrations as opposed to those in the higher
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echelons (who must handle a broader and more diversified range of
activities, including administration and supervision). While the
dictionary definitions of "firefighter" do not necessarily exclude
those whom the defendants seek to include, they argue persuasively
against their inclusion.
Our case law also militates against including higher
ranks under the appellation "firefighter." For example, in Boston
Police Superior Officers, 147 F.3d at 17-18, we held that the term
"police officers" used in a consent decree governing promotions
within the Boston Police Department did not include all police
officers, but, rather, encompassed only patrolmen. That case, like
this one, illustrates the importance of honoring contextual
constraints that may be placed on a word or phrase within the four
corners of a consent decree.
Last — but far from least — including higher ranks within
the compass of the term "firefighter" would mean that the Beecher
decree was not narrowly tailored to serve its stated purpose. Such
an interpretation would effectively transform an instrument
carefully crafted to eliminate discrimination in recruitment and
hiring into general leverage favoring minorities in a much wider
variety of matters. In most of those areas — promotion is a good
example — no justification for systematic preferential treatment of
minorities has been established. Thus, the transformation that
necessarily would accompany an acceptance of the defendants'
-23-
interpretive gloss would present an insurmountable constitutional
obstacle. See Bakke, 438 U.S. at 307. Because courts should avoid
construing a consent decree in a constitutionally offensive way if
a feasible alternative construction exists, this looming
constitutional quandary is itself a cogent argument for rejecting
the defendants' expansive view of the term "firefighter." Cf.
Walsh v. Schlecht, 429 U.S. 401, 408 (1977) ("[C]ontracts should
not be interpreted to render them illegal and unenforceable where
the wording lends itself to a logically acceptable construction
that renders them legal and enforceable.").
The opposite pan of the scale contains nothing of
sufficient weight to counterbalance this powerful asseverational
array. Insofar as we can discern, interpreting the word
"firefighter" to include higher ranks has no basis in the record.
The decree is utterly silent as to activities affecting higher
ranks, and the remainder of the record — both current and
historical — is devoid of any allegation or finding that the BFD
has ever discriminated against minorities in promotions or in other
personnel practices involving those in (or aspiring to reach) the
higher ranks. Indeed, the original Beecher plaintiffs would not
have had standing to allege discrimination in such respects.7
7
Beecher was a consolidated set of class actions in which the
district court certified two classes. The first class consisted of
"[a]ll black or Spanish-surnamed persons who have applied for the
position of firefighter in any fire department . . . subject to
Massachusetts Civil Service law, but have not become eligible for
-24-
Taking these facts into account, it unfairly belittles the Beecher
court to read "firefighter" as that term is used in the decree to
include all ranks (and, thus, to impute to the court the
injudicious crafting of a remedy that reaches beyond the scope of
the surrounding litigation).
The defendants, ably represented, nonetheless advance a
plethora of counter-arguments. Only four of them require
discussion.
First, the City and the intervenor point to paragraph 11
of the interim consent decree of November 25, 1975. That proviso
requires a municipality seeking to be released from the decree to
petition the MDPA, informing that agency "that the percentage of
post-probationary minority uniformed personnel equals the
percentage of minorities" in that municipality. We do not believe
that this casual (and wholly unexplained) linguistic switch from
"firefighter" to "uniformed personnel" can be accorded decretory
significance. This is especially so in light of two facts. First,
that same proviso incorporates by reference paragraph 7 of the
April 17, 1975 interim consent decree (which opens the way for
release from the decree "whenever a particular city or town has
appointment under existing requirements." Beecher I, 371 F. Supp.
at 510. The other class included "[a]ll black or Spanish-surnamed
persons who have never applied for the position of firefighter
because they have allegedly been deprived of information concerning
firefighter employment opportunities as a result of the allegedly
discriminatory recruitment practices of the defendants." Id.
-25-
achieved a complement of Black or Spanish-surnamed firefighters
commensurate with the percentage of minorities within the
community"). Second, the preamble to the November 25 decree — the
decree which introduced the term "uniformed personnel" into the
litigation — unequivocally declared that "the parties consent to
entry of this Agreement to permit . . . the establishment of an
eligibility list for the position of firefighter . . . ."
(Emphasis supplied). In the final analysis, then, the phrase upon
which the defendants rely leads us back to our starting point.
We add, moreover, that if the phraseology employed in the
November 25, 1975 decree was intended to clarify that the earlier
decrees affected more than the firefighter rank, it seems highly
likely that the Beecher court would have used more precise language
such as "of all ranks" or "of any rank." But the Beecher court
eschewed such language. What is more, the court demonstrated an
inclination to use general descriptors for specific subject matter.
See Beecher I, 371 F. Supp. at 523 (using the general phrase
"complement of minorities" to refer to the specific minority
"[g]roup of all eligible blacks and Spanish-surnamed persons"). In
our view, this proclivity undermines the inference that the
defendants (and the dissent) seek to draw from the phrase "post-
probationary uniformed personnel."
Before leaving this point, we note that our dissenting
colleague sees "no basis for concluding that 'firefighter' is the
-26-
operative word" in the Beecher decree and the two interim decrees
that followed. Yet that word appears no fewer than twenty-six
times in those decrees, while the term "uniformed personnel"
appears only once. This repeated emphasis, especially when coupled
with the fact that the litigation revolved around the position of
firefighter and did not concern other ranks, makes it perfectly
clear that "firefighter" is indeed the operative term.
Next, the defendants strive to convince us that we should
defer to a 1987 memorandum issued by the MDPA, which indicates
that, for Beecher purposes, the first variable should consist of
"the actual percentage of the authorized uniformed permanent full-
time force which is made up of tenured Black or Hispanic officers
of any rank." We are not persuaded.
The deference typically owed by a court to an
administrative agency derives from the fact that the agency has
been entrusted by a legislative body to administer a statute
enacted under that branch's separate constitutional authority. See
Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S.
837, 842-44 (1984); see also Fireside Nissan, Inc. v. Fanning, 30
F.3d 206, 212 (1st Cir. 1994) (reasoning that state officials'
interpretation of state statute is entitled to deference). If the
legislative branch has "left a gap for the agency to fill, there is
an express delegation of authority." Chevron, 487 U.S. at 843-44.
-27-
Thus, a court must defer to the agency's reasonable construction of
a provision in the statute. Id. at 844.
Here, however, a state agency is helping to administer
compliance not with a legislative enactment but with a federal
judicial decree. A federal appellate court owes no deference to
such an agency when endeavoring to discern the meaning and
constitutional limits of such a decree. After all, if the
judiciary is the final arbiter as to questions of statutory
construction and must refuse to accept administrative
interpretations that contradict clearly ascertainable legislative
intent, see id. at 843 n.9, courts certainly have the power —
indeed, the duty — to reject an administrative construction that
runs contrary to the manifest intent of a judicial decree.
Third, the defendants posit a variation on the "trickle
up" theory. See, e.g., Stuart, 951 F.2d at 452 ("One obvious
reason . . . why there may have been few black sergeants in the
Boston Police Force in 1978 is that the Department had not hired
many black police officers before 1970. Since unjustified
discrimination accounted for the latter fact, [it] cannot excuse
the former."). They assert that not including higher ranks within
the term "firefighter" would diminish the efficacy of the decree
and reward appointing authorities for keeping minorities in the
firefighter rank (thus perpetuating underrepresentation in the
higher echelons). For that reason, they argue, it makes sense to
-28-
require parity department-wide before allowing a community to
escape from the constraints imposed by the Beecher decree.
This argument is specious. We have determined, and the
defendants concede, that the parties never intended the decree to
address promotions. On that basis alone, it would be improper to
extend the decree's reach by judicial fiat. See Boston Police
Superior Officers, 147 F.3d at 17-18. Furthermore, alleging that
unconstitutional hiring practices within the BFD have caused a
disparate impact on the number of minorities in the higher echelons
is a heavy charge. Such an allegation should not be addressed in
the abstract, but, rather, should be squarely propounded by an
injured party with standing to sue and litigated to a just
conclusion. Because the litigation giving rise to the Beecher
decree is of a different nature than the justification that the
defendants now offer, the decree is a constitutionally insufficient
vehicle for addressing that justification. See id. at 18; see also
Wessmann, 160 F.3d at 802 ("The mere fact that an institution once
was found to have practiced discrimination is insufficient, in and
of itself, to satisfy a state actor's burden of producing the
reliable evidence required to uphold race-based action.").
Finally, the City and the intervenor make an argument of
last resort. They contend that their interpretation of the term
"firefighter" is proper because they have assumed all along that
the term embraced more than entry-level personnel. In the
-29-
circumstances of this case, such a contention does not get them
very far.
In pressing this point, the defendants lean heavily upon
past practice of the MDPA and attempt to apply language derived
from Mackin to that practice. There, we rejected the argument that
static 1974 population figures controlled the measurement of
parity. In so doing, we wrote that "[f]ew things evidence a
decree's meaning more persuasively than an immutable, decade-old
pattern of past practice under the decree, consensually engaged in
by all sides in the underlying litigation that produced the
decree." 969 F.2d at 1276.
That language is inapposite here. In Mackin, we were
using a uniformly accepted past practice to validate a facially
plausible interpretation of the Beecher decree (i.e., that current
population figures would control). See id. We deemed that past
practice confirmatory of what appeared to be a commonsense reading
of the verbiage chosen by the parties and approved by the district
court. In contrast, the defendants here attempt to use an
administrative practice first inaugurated in 1987 (thirteen years
after the entry of the Beecher decree), and never directly
challenged, to change the meaning of plain language and thus to
validate an unlikely interpretation that is implausible in the
context of the underlying litigation (and one which, in the
bargain, would open the decree to constitutional attack). To the
-30-
extent that the MDPA's past practice points toward that suggested
interpretation, it lacks record support and therefore cannot
dominate the decisional calculus. See Wessmann, 160 F.3d at 802;
Stuart, 951 F.2d at 454-55.
To dwell on this issue would be pointless. It suffices
to say that the history and purpose of the litigation, the language
of the decree, and the usage of the BFD make manifest that the term
"firefighter," as used in the Beecher decree, was intended to
include only those persons serving in the entry-level rank.
Interpreting "firefighter" more broadly would rip the decree from
its constitutional moorings, twist its language into something
alien to its evident purpose, and violate settled principles of
contract law. Accordingly, the proper parity-measuring device —
what we have called the first variable — comprises the percentage
of minorities in the entry-level rank of the BFD as of the relevant
date (November of 2000).
C. The Second Variable.
As for the comparison that Beecher demands — the second
variable — the Candidates, citing cases decided after the entry of
the original Beecher decree, assert that in affirmative action
employment cases minority representation must be measured against
the specific adult population that comprises the qualified labor
pool. See City of Richmond v. J.A. Croson Co., 488 U.S. 469, 501-
02 (1989); Local 28 of Sheet Metal Workers' Int'l Ass'n v. EEOC,
-31-
478 U.S. 421, 479 (1986); Stuart, 951 F.2d at 450, 453-54. They
insist that any other focus would be unconstitutional and that,
therefore, the relevant comparison in this case necessarily must be
to Boston's over-19 black and Hispanic population. See Mass. Gen.
Laws ch. 31, § 58 (requiring firefighters to be over 19 years of
age).8
The district court held that this point previously had
been resolved. Quinn, 204 F. Supp. 2d at 163. We agree that stare
decisis governs. The last time around, we addressed this aspect of
the standard for measuring compliance head-on and held that the
proper data are the "contemporaneous population figures [for] . .
. 'the percentage of minorities within the community.'" Mackin,
969 F.2d at 1276 (quoting the Beecher decree). At that time, we
considered the very authorities upon which the Candidates now rely
and specifically repudiated the notion that the pertinent language
of the decree was overbroad. Id. at 1277-78. Thus, principles of
stare decisis required the district court to reject the Candidates'
version of how the second variable should be constructed. See
Planned Parenthood v. Casey, 505 U.S. 833, 854 (1992) (recognizing
that the doctrine of stare decisis embodies "[t]he obligation to
follow precedent").
8
This statute currently imposes an upper age limit (32) for
new firefighters. See Mass. Gen. Laws ch. 31, § 58. Because no
maximum age applied to the November 2000 hiring cycle, we do not
dwell on this feature.
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If more were needed — and we do not think that it is — we
note that the Beecher decree unambiguously requires the use of the
percentage of minorities in the general population as the second
variable for gauging discriminatory patterns in entry-level hiring.
See Beecher I, 371 F. Supp. at 523; see also Mackin, 969 F.2d at
1276 (enumerating portions of the Beecher decree that require, or
plainly contemplate, reference to the percentage of minorities in
the general population). That requirement is fully consistent with
the authorities cited by the Candidates. See Croson, 488 U.S. at
501 ("In the employment context, we have recognized that for
certain entry level positions requiring minimal training,
statistical comparisons of the racial composition of the relevant
population may be probative of a pattern of discrimination.").
Whether or not some other standard might be more precise, the fact
remains that the firefighter position is of the type contemplated
by the Croson Court. Thus, the parties' original bargain for a
community-wide pool and the district court's endorsement of that
concept are entitled to great weight.9 See Navarro-Ayala, 951 F.2d
9
We note that the district judge who actually entered the
Beecher decree (Judge Freedman) made specific mention that, in
1974, the BFD required applicants to be within an age range of 19-
35 years. Beecher I, 371 F. Supp. at 512. He also observed that,
prior to 1971, the minimum age had been 21. Id. Mindful of this
shift, he concluded that the community population as a whole would
be an appropriate measure of compliance. This seems supportable in
light of Judge Freedman's recognition that the enjoined party had
the power to reconfigure the contours of the labor pool. The
authorities cited by the Candidates involve parties without such
leverage vis-à-vis the reach of the remedy; where such leverage
-33-
at 1339 (reasoning that the district court is best able to decide
certain types of parameters in public institutional reform
litigation and, thus, is owed deference when the scope of the
parties' original bargain is not at issue).
We reaffirm, therefore, that the appropriate standard for
measuring compliance with the Beecher decree — what we have termed
the second variable — consists of contemporaneous population
statistics depicting the percentage of minorities within the
overall community. It follows that a fire department subject to
the Beecher decree will remain so until that department succeeds in
demonstrating that it has achieved "the decree's actual objective:
rough parity," Mackin, 969 F.2d at 1277, measured by establishing
the percentage of minorities among entry-level firefighters in the
particular department and comparing that ratio to the percentage of
minorities within the general population of the local community.
When this comparison demonstrates that parity (or, at least, rough
parity) has been attained, then the Beecher decree has outlived its
usefulness as to that community's firefighting force.
exists, however, measuring parity against general population
statistics prevents a public employer enjoined for discriminatory
practices in violation of federal law from manipulating the remedy
to suit its fancy. So viewed, Judge Freedman's shaping of the
second variable is a good example of why "broad judicial discretion
[is often] crucial for the district judge to secure complex legal
goals." Navarro-Ayala, 951 F.2d at 1338 (citations and internal
quotation marks omitted).
-34-
D. Reworking the Algorithm.
From this analysis, it is evident that the district court
erred in constructing the first Beecher variable. In order to
determine whether that error affected the Candidates' substantial
rights, see Fed. R. Civ. P. 61, we rework the algorithm using the
proper variables. If that algorithm does not yield ratios that
show parity (or, at least, rough parity) between the percentage of
minorities in the entry-level rank of the BFD and the percentage of
minorities in the City of Boston as a whole, then the entry of
summary judgment in the City's favor must stand. See Houlton
Citizens' Coalition v. Town of Houlton, 175 F.3d 178, 184 (1st Cir.
1999) (holding that a grant of summary judgment may be affirmed on
any independent ground revealed by the record).
On this issue, the parties urging that parity has been
achieved (here, the Candidates) bear the burden of proof. See C.K.
Smith & Co. v. Motiva Enter. LLC, 269 F.3d 70, 73 (1st Cir. 2001).
That is of purely academic interest in this case for the pertinent
facts are uncontradicted. The court below developed the factual
record sufficiently to demonstrate that, when the City recruited
the 2000 hiring class, blacks and Hispanics comprised approximately
40% of the firefighters within the BFD. At the same time, blacks
and Hispanics constituted slightly over 38% of Boston's overall
population. Quinn, 204 F. Supp. 2d at 162. Hence, parity had been
achieved, and the City had become eligible for release from the
-35-
strictures of the Beecher decree. See Beecher II, 504 F.2d at
1026-27.
Given these facts, the district court's error was not
harmless. After all, a public employer who consents to the use of
race as a factor in order to palliate the lingering effects of past
discrimination must maintain continuous oversight in order to
ensure that the decree works the least possible harm to other
innocent persons competing for employment. Bakke, 438 U.S. at 308.
Once parity has been achieved, the decree has served its legitimate
purpose, and the justification for it has abated. See id. at 309.
From that point forward, the employer has no basis to continue
preferring minorities. See id.; see also Mackin, 969 F.2d at 1276
("An intrusion by a federal court into the affairs of local
government should be kept to a bare minimum and not be allowed to
continue after the violation has abated and its pernicious effects
have been cured.").
We conclude, therefore, that the City's continued resort
to race-based preferences from and after the time when parity was
achieved fails the second prong of the strict scrutiny analysis.
See Bakke, 438 U.S. at 309. Thus, the City's adherence to the
Beecher decree during the 2000 hiring cycle was unconstitutional.
Consistent with the foregoing, we reverse the district court's
entry of summary judgment in favor of the City and direct the court
to enter judgment in the Candidates' favor.
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E. Relief.
Our holding does not end the matter: there remains the
question of what remedy is appropriate under the circumstances.
That is a highly ramified question, the answer to which is subject
to the push and pull of competing centrifugal and centripetal
forces.
On the one hand, a public employer's good faith reliance
on a consent decree entered to remedy the effects of past
discrimination should not lightly be disturbed. See, e.g., Boston
Police Superior Officers, 147 F.3d at 25. That proposition has
particular bite as to the firefighters who were appointed to the
BFD during the 2000 hiring cycle, for the Beecher decree does not
directly dictate hiring decisions, but, rather, simply directs
municipalities to take affirmative action concerns into account in
choosing among qualified applicants. See Mackin, 969 F.2d at 1278
(explaining that "only qualified minority candidates are specially
advantaged; no minority candidate is placed on the eligibility list
unless he or she has attained a passing score on the entrance
examination") (emphasis in the original). Constitutional
violations rarely, if ever, justify the reversal of specific
employment decisions previously made by government employers
insofar as those decisions affect innocent parties. See, e.g.,
Boston Police Superior Officers, 147 F.3d at 25; cf. Wygant, 476
U.S. at 282-83 ("Denial of a future employment opportunity is not
-37-
as intrusive as loss of an existing job."). The history of this
case offers a striking example of this truism: the Beecher court,
despite its finding of pervasive past discrimination, did not
disturb the livelihood of those firefighters who were on the force
in 1974. See Beecher I, 371 F. Supp. at 520 (noting the need to
"preserv[e] morale within the fire departments").
On the other hand, we have acknowledged that when job
applicants have been denied equal protection of the laws by a
public employer, "[t]he result, not the specific intent, is what
matters." Beecher II, 504 F.2d at 1021 (citation and internal
quotation marks omitted). In that spirit, the original Beecher
court invoked its equitable powers to fashion affirmative relief
for a perceived injury even after explicitly disavowing any finding
that the "exclusionary policy [giving rise to the litigation] ha[d]
been followed intentionally or by design." Beecher I, 371 F. Supp.
at 519.
Here, the Candidates have neither offered any evidence
that the City acted in bad faith nor otherwise set forth a
plausible basis that would justify a court in second-guessing the
specific decisions made by the City in the 2000 hiring cycle. In
a similar vein, they have not established that the persons actually
hired were either complicit in some scheme or somehow undeserving
of their appointments. Consequently, there is no principled basis
for turning back the clock and revoking those appointments.
-38-
That does not mean, however, that the Candidates are
entitled to no more than a handshake or a tip of the hat. The fact
remains that they have succeeded in showing that the City applied
a consent decree, previously held to be constitutional, for too
long. The result was that the City infringed the Candidates'
constitutional rights when it acted upon their applications for
appointment to the BFD. They should at least have had the
opportunity to compete for the positions that they coveted free of
the constraints imposed by the Beecher decree. See Bakke, 438 U.S.
at 308. Balancing these competing considerations, we hold that
the BFD's decisions to appoint specific individuals during the 2000
hiring cycle were valid exercises of its responsibility to provide
the citizens of Boston with a full complement of qualified
firefighters. See Beecher I, 371 F. Supp. at 520. Nevertheless,
the application of the decree to the 2000 hiring cycle violated the
Candidates' constitutional rights by depriving them of an equal
opportunity to compete for positions on the BFD. See Bakke, 403
U.S. at 308. On remand, the district court must sort through this
tangle and determine, in its sound discretion, the appropriate
remedy for the Candidates' injury (excluding, however, any form of
relief that would require dismissal of any provisionally or
permanently appointed firefighter currently serving in the BFD).
-39-
IV. CONCLUSION
The goal of the Beecher decree was to eliminate
discriminatory practices in the recruitment and hiring of
firefighters in communities subject to the Massachusetts Civil
Service laws, and, relatedly, to remedy the effects of past
discrimination in recruitment and hiring. Remediation has taken
more than a quarter-century. At long last, however, that objective
has been achieved with respect to the BFD; parity has been reached
between the percentage of minority firefighters in the BFD and the
percentage of minorities in the City as a whole.10
Although this is a significant landmark along the road to
equality, we add a word of caution. We are not Pollyannas, and we
10
Our dissenting brother never squarely addresses the
Candidates' argument that "even assuming that general population
statistics are to be considered, the minority composition of the
Department's firefighters (39.9%) exceeded the minority composition
of the general population of Boston (38.3%). The examination of
parity should focus on minority representation in the firefighter
position alone . . . . The racial preferences at issue apply
solely to the firefighter position." Appellants' Brief at 23
(internal cross-references and paragraph structure omitted). This
is a changed circumstance requiring an examination into "whether
the goals of the litigation . . . have been completely achieved,"
Mackin, 969 F.2d at 1275, as well as a question posed for the first
time involving the decree's constitutional application. Viewed in
either fashion, the question warrants strict scrutiny. See Rufo v.
Inmates of Suffolk County Jail, 502 U.S. 367, 384 (1992); see also
Adarand, 515 U.S. at 235. Our dissenting brother, however, says
only that he "cannot imagine that the plaintiffs in the Beecher
litigation would have decided upon a remedy that provides
incentives [to keep minorities in the entry-level rank]." This is
the stuff not of strict scrutiny but of rational basis review.
See, e.g., FCC v. Beach Comm'ns, Inc., 508 U.S. 307, 315 (1993)
(upholding law under rational basis review "based on rational
speculation unsupported by evidence or empirical data").
-40-
recognize that achieving parity at the firefighter level is not
tantamount to saying that all is well in regard to racial and
ethnic issues within the BFD as a whole. To the extent that
inequalities remain, however, they are not within the compass of
either the Beecher decree or this litigation. Nor will we reach
out for them — issues of constitutional magnitude should not be the
subject of speculation, but, rather, should be litigated fully by
parties with standing to represent various pertinent points of
view. For today, we fulfill our responsibility by holding that the
City's appointment of firefighters ought no longer be subject to
the strictures of the Beecher decree. We need go no further.
The judgment of the district court is reversed and the
case is remanded for further proceedings consistent with this
opinion. Costs are to be taxed in favor of the appellants.
— Dissenting opinion follows —
-41-
LIPEZ, Circuit Judge, dissenting. The majority frames
the critical issue as one involving "competing interpretations of
the term firefighter." I respectfully disagree that this is the
central issue in the dispute. Indeed, the majority attributes an
argument to the Candidates that they have not made in this
litigation -- that the court and the parties to the Beecher decree
understood as a matter of original intent that minority presence in
the fire departments subject to the decree would be calculated by
considering only the entry-level firefighter rank. The Candidates
acknowledge that "[w]hen the Beecher decree was originally
conceived, its apparent goal was to generate racial parity in the
Fire Department as a whole, as opposed to merely the firefighter
ranks." Instead, the Candidates argue that we should focus only on
the entry-level ranks because changed circumstances since 1974 and
1992, when we last reviewed the Beecher decree in Mackin v. City of
Boston, 969 F.2d 1273 (1st Cir. 1992), render the original intent
of the decree unconstitutional.
Moreover, even if the Candidates had asked us to
determine the original intent of the parties on the calculation of
parity, it is a mistake to frame the issue as a search for the
meaning of the term "firefighter." As I will explain in more
detail, there is no consistent use of the word "firefighter" as the
operative term in the calculation of parity. Instead, there are a
variety of terms used, only one of which is the word "firefighter."
-42-
The relevant question, then, is which of the early formulations of
the measurement of parity captures the intent of the parties and
the court.
This dissent proceeds in three parts. In Part I, I
address the majority's conclusion that the Beecher decree always
contemplated that the first variable, to use the majority's
language, would only consider the percentage of minorities in the
entry-level firefighter ranks. In Part II, I address the
majority's assertion that narrow tailoring requires this
interpretation of the decree to avoid constitutional problems. In
Part III, I evaluate the Candidates' argument that changed
circumstances since the entry of the Beecher decree require that
the decree now be read to measure parity by focusing only on the
firefighter ranks.
I. Interpreting the Decree
In the original Beecher decree issued on February 8,
1974, the court used the phrase "complement of minorities" in the
operative sentence explaining when a city's fire department could
receive an exemption.11 Boston Chapter, NAACP, Inc. v. Beecher, 371
11
In our first review of the decree, we paraphrased the parity
paragraph of the decree, saying that "[t]he decree remains in
force, for each local fire department, until that department
attains sufficient minority fire fighters to have a percentage on
the force approximately equal to the percentage of minorities in
the locality." Boston Chapter, NAACP, Inc. v. Beecher, 504 F.2d
1017, 1026-27 (1st Cir. 1974). While the use of the term "fire
fighters" may have been a shorthand description of the decree, it
certainly should not supplant the language of the original decree.
-43-
F. Supp. 507, 523 (D. Mass.), aff'd 504 F.2d 1017 (1st Cir. 1974).
In its Interim Consent Decree of April 17, 1975 (signed by the
parties), the court for the first time used the term "firefighter"
in explaining the process for obtaining an exemption: "The Director
[of Personnel Administration] shall notify the plaintiffs and
supply evidence to the plaintiffs whenever a particular city or
town has achieved a complement of Black and Spanish-surnamed
firefighters commensurate with the percentage of minorities within
the community . . . ." Boston Chapter, NAACP, Inc. v. Beecher, No.
72-3060-F, slip op. at 4 (D. Mass. Apr. 17, 1975) (emphasis added).
Soon thereafter, though, the parties signed the "Agreement to
Effectuate Interim Consent Decree," which again discusses
exemptions. Paragraph 11 of that Agreement states: "No fire
department . . . may be exempted . . . unless the appointing
authority has first petitioned the Division that the percentage of
post-probationary minority uniformed personnel equals the
percentage of minorities in the city or town served by said
department . . . ." Boston Chapter, NAACP, Inc. v. Beecher, No.
72-3060-F, slip op. at 6 (D. Mass. Nov. 25, 1975) (emphasis
added).12
12
The majority dismisses the city's reliance on the terminology
of the November 1975 Agreement because that Agreement "incorporates
by reference paragraph 7" of the April 1975 decree, which uses the
term "firefighters," and therefore "leads us back to our starting
point." The majority assumes that the April 1975 decree should be
the court's "starting point." The starting point of the analysis
should be the original Beecher decree -- which uses the phrase
-44-
Presented with these three formulations, the majority
chooses to focus on the word "firefighter" in the April 1975
Interim Consent Decree as the critical word and dismisses the
formulation in the final agreement of the parties ("the percentage
of post-probationary minority uniformed personnel") as a "casual
(and wholly unexplained) linguistic switch." This dismissive
characterization seems odd, especially since the phrase "post-
probationary minority uniformed personnel" in the November 1975
Agreement is far closer to the general language of the original
Beecher decree ("complement of minorities") than the word
"firefighter" used in the April Interim Decree. The "complement of
minorities" and "post-probationary minority uniformed personnel"
formulations also seem to capture the purpose that the
Beecher court attributed to its own decree -- to remedy the
"exclusion of minorities from the fire department" -- than does
the word "firefighter." Beecher, 371 F. Supp. at 519-20.
However, there is support for competing views in the
shifting word choices of these three decrees. The language itself
does not tell us definitively what the court and parties intended
for the measure of the first variable. But the use of the word
"firefighter" is part of the ambiguity -- not the answer to it. In
the sequence of language in the three decrees, there is no basis
for concluding that "firefighter" is the operative word and that
"complement of minorities." Beecher, 371 F. Supp. at 523.
-45-
determining its plain meaning will answer the intent question.13
Instead, we must acknowledge that the competing formulations of the
first variable create an inescapable ambiguity which must be
resolved by resort to extrinsic evidence.
We have already opined in this litigation on the kind of
persuasive evidence that helps resolve such ambiguities. "Few
things evidence a decree's meaning more persuasively than [a] . .
. pattern of past practice under the decree . . . ." Mackin, 969
F.2d at 1276. The City and the NAACP produced evidence that
Massachusetts has required municipalities seeking exemptions from
the decree to compare the percentage of minorities in the
population of their city or town to the percentage of minority
personnel among their departments' entire uniformed personnel.
Using this formula, forty-five municipalities originally subject to
the decree have received exemptions. An affidavit in the record
explains that no department's appointing authority has objected to
this formula since it has been in place. This understanding of the
13
In support of its argument that "firefighter" is the
operative term for interpreting the decree, the majority notes that
the term "firefighter" is used "no fewer than twenty-six times in
the decrees, while the term 'uniformed personnel' appears only
once." While likely true, this statement is beside the point. For
example, the term "firefighter" is used no fewer than ten times
simply to describe the examination given to candidates, for example
"valid firefighter entrance examination" and "fire fighter
examination." As I indicated, one must focus on the operative term
of the decrees, i.e. the language which explains the meaning of
parity. In that context, the word "firefighter" is one of only
three formulations.
-46-
decree has been memorialized in a 1987 memorandum circulated by the
Massachusetts Department of Personnel Administration outlining "the
process and the criteria for seeking approval for exemption" from
the Beecher decree. This memorandum, using the same terminology as
the November 1975 Agreement, states that a municipality must
consider the "full-time uniformed force" and calculate the
percentage of "post-probationary (tenured) full-time permanent
Black or Hispanic members of the uniformed force" to determine
whether parity has been achieved.
The majority dismisses the importance of this memorandum,
concluding that "a federal appellate court owes no deference to [a
state agency helping to administer compliance with a federal
judicial decree] when endeavoring to discern the meaning and
constitutional limits of such a decree." As a generality this
point is a fair one. But this memorandum from the Massachusetts
Department of Personnel Administration demonstrates much more than
a reasonable interpretation of ambiguous language in a federal
decree by a helpful state agency. This memorandum describes a
"pattern of past practice" of the application of language in the
November 1975 Agreement by one of the parties to the original
litigation.
The Commissioners of the Massachusetts Division of Civil
Service were some of the named defendants in the consolidated
Beecher litigation. At some point, the Department of Personnel
-47-
Administration became the successor to the Division of Civil
Services and responsible for carrying out the remedial provisions
of the decree. Paragraph 1 of the April 1975 decree describes how
the "Director of Civil Service [hereinafter Director shall mean the
Director, his successors, or after July 1, 1975, the Personnel
Administrator]" should implement the original Beecher decree.14
Paragraph 1 of the November 1975 Agreement refers to "The Division15
of Personnel Administration (formerly known as the Division of
Civil Service, and hereinafter, the 'Division') . . . ." Paragraph
11 of the November 1975 Agreement designates the "Division" as the
agency to which municipal fire departments should apply for
exemptions from the decree. The November 1975 Agreement was also
signed by counsel for the "Director of Personnel Administration."
The memorandum in question, then, was not issued by an agency that
was a stranger to the underlying litigation. Instead, it was
crafted by a party to the Beecher litigation with the court-ordered
responsibility to review the petitions of municipal fire
departments for exemption from the decree. Under these
circumstances, the insistence in Mackin on the persuasive value of
14
The bracketed words are in the April 1975 decree.
15
Although the Beecher court referred to the Division of
Personnel Administration, the agency calls itself the Department of
Personnel Administration. I assume that the agencies in question
are one and the same. There does not currently exist a
Massachusetts agency with the official name Division of Personnel
Administration.
-48-
a pattern of past practice under the decree is particularly apt.
See also Navarro-Ayala v. Hernandez Colon, 951 F.2d 1325, 1353 (1st
Cir. 1991) (Cyr, J., concurring in part and dissenting in part)
(analogizing a consent decree to a contract: "Under a well-
established rule of contract interpretation, the court may look to
the parties' post-contract course of conduct and performance to
ascertain the 'practical interpretation and application' that the
parties themselves attached to the ambiguous contract language.")
(emphasis in original).
The majority says that Mackin's directive to consider
post-execution practice to interpret the decree's meaning is
"inapposite" in this case because the evidence of the practice in
question is being used "to change the meaning of plain language and
thus to validate an unlikely interpretation" of the Beecher decree.
However, there is no plain language in the decrees on the issue of
the first variable, and the "unlikely interpretation" was one
adopted by one of the parties to the underlying litigation and
complied with by many other municipalities subject to the decree.
Therefore, the majority's interpretation of the decree runs
contrary both to Massachusetts's demonstrated understanding of it
and to the lengthy history of its application in granting many
exemptions from the decree over a period of at least sixteen years
(that is, since 1987).
-49-
It is also difficult to reconcile the majority's
interpretation of the decree with incentives that would have seemed
sensible to the parties to the decree. If, at the time the decree
was entered, a city fire department knew that it needed to show
parity only in its entry-level class to receive an exemption from
the decree, it could achieve its goals more quickly by keeping all
the minority firefighters it hired at the entry level -- that is,
by selecting for promotion only non-minority firefighters. The
majority's interpretation would have provided an incentive for fire
departments not to promote the black and Hispanic firefighters it
hired under the terms of the decree. Every minority firefighter
promoted to an officer position would have been another black or
Hispanic member of the department that did not count towards the
calculation of parity.
Although there is no evidence in the record that the
Boston Fire Department ("BFD") has ever discriminated against black
and Hispanic firefighters in its previous promotion decisions, the
majority's interpretation of the decree creates an incentive for
discriminatory behavior for those municipalities still subject to
the decree after the resolution of this case. I cannot imagine
that the plaintiffs in the Beecher litigation and the district
-50-
court would have decided upon a remedy that provides incentives so
at odds with the purpose of the litigation and the relief ordered.16
II. Narrow Tailoring
To support its interpretation of the Beecher decree, the
majority contends that the interpretation advanced by the city and
the NAACP "would mean that the Beecher decree was not narrowly
tailored to serve its stated purpose." In elaborating on this
point, the majority raises another argument that was not raised by
the Candidates:
Such an interpretation would effectively
transform an instrument carefully crafted to
eliminate discrimination in recruitment and
hiring into general leverage favoring
minorities in a much wider variety of matters.
In most of those areas -- promotion is a good
example -- no justification for systematic
preferential treatment of minorities has been
established.
As I understand it, the majority reasons that the interpretation of
the Beecher decree advocated by the NAACP and the city would
impermissibly benefit minority firefighters by somehow giving them
preferences for promotions even though the Beecher court made no
16
In a footnote to its opinion, the majority cites this point
as evidence that I do not understand the difference between strict
scrutiny and rational basis review. Self-evidently, I make this
point only in support of the original meaning of the decree
advanced by the defendants and acknowledged by the Candidates. I
do not proffer it as a constitutional basis for upholding the
decree. My conclusion that this original interpretation of the
decree is constitutional, or more specifically, that it is narrowly
tailored to a compelling government interest, is presented in the
section that follows.
-51-
findings regarding the constitutionality of the promotion policies
of the fire departments subject to the decree. This effect of the
Beecher decree, the majority concludes, would render it
unconstitutional.
I disagree with this conclusion because the decree does
not in fact have the effect of granting minorities preferential
treatment in promotions. That is, I fail to see how merely
calculating parity by taking the entire department into
consideration leads to a "systematic preferential treatment of
minorities" in the promotion process. First, there is no evidence
in the record that minority firefighters hired in accordance with
the Beecher decree have received preferences for promotions.
Therefore, the majority's conclusion about such an effect is
entirely speculative. Second, the logic of the majority's
"preferential treatment" argument is problematic. By its terms,
the Beecher decree does not explicitly address the promotion
policies of the BFD or any other fire department in any way.
Whether parity is calculated by taking into consideration merely
entry-level firefighters, or by also including lieutenants,
captains, and chiefs, the decree does not mandate changes in the
department's promotion practices. Because the criteria for
promoting firefighters, whatever they may be, are independent from
the hiring criteria, the Beecher court's alterations to the BFD's
hiring criteria have no effect on its promotion criteria.
-52-
Therefore, whether or not the Beecher decree continues to direct
the method by which the department hires new firefighters, we can
only assume, without any evidence to the contrary, that the
department will continue to decide promotions in the same way it
always has.
True, by design, the decree results in an increase in the
diversity of the class from which the BFD selects the firefighters
for promotion. However, this consequence of the decree cannot be
"general leverage favoring minorities." In any organization that
promotes from within, the application of a hiring decree that
results in the employment of minorities that otherwise would not
have been hired necessarily increases the possibility that some of
those minorities will be promoted to officers and thereby change
the racial makeup of the officer ranks. Just because the decree
has the consequence of changing the racial composition of the pool
of those eligible for promotions does not mean that it is
unconstitutional.
III. Changed Circumstances
As noted, the Candidates concede that, "[w]hen the
Beecher decree was originally conceived, its apparent goal was to
generate racial parity in the Fire Department as a whole, as
opposed to merely the firefighter ranks." However, they argue that
after twenty-eight years, "a different analysis must be used if the
decree is to be implemented in a constitutionally acceptable
-53-
manner." Specifically, the Candidates point to three changed
circumstances that they claim require a revised interpretation of
the decree. First, they say that it has become evident over time
that the decree is ineffective for the purpose of generating racial
diversity in the upper ranks of the BFD. Second, the Candidates
remind us that twenty-eight years have elapsed since the entry of
the Beecher decree, and argue that this is simply too long to wait
for the realization of rough parity. Third, when the scope of the
inquiry is restricted to consideration of only entry-level
firefighters, statistics show that the percentage of minority
firefighters exceeds the percentage of minorities in the community,
resulting in an "excess of parity" at the entry level.
Frankly, I am at a loss to understand this third "changed
circumstance" as a discrete argument. The Candidates offer two
variations of "excess of parity." In the first, the Candidates use
a computation of parity that the majority has rightly rejected.
That computation reflects the difference between the percentage of
minority firefighters (39.9%) and the minority population of Boston
aged 18 and older (32.6%). I agree with the majority that stare
decisis requires the use of the percentage of minorities in the
general population, rather than the adult population, as the second
variable for gauging parity. In the alternative, the Candidates
assert that "even assuming that general population statistics are
to be considered, the minority composition of the Department's
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firefighters (39.9%) exceeded the minority composition of the
general population of Boston (38.3%)." However, after conceding
that "[w]hen the Beecher decree was originally conceived, its
apparent goal was to generate racial parity in the Fire Department
as a whole, as opposed to merely the firefighter ranks," the
Candidates do not use this formulation of "excess of parity" to
articulate a distinct constitutional argument. Instead, they use
the statistics as evidence that the decree is not effective for the
purposes of achieving this "apparent goal" of racial diversity in
the upper ranks of the BFD. Hence, because "excess of parity" in
the firefighter rank is inescapably tied to the first "changed
circumstance" argument relating to the ineffectiveness of the
decree, I will not address this "excess of parity" argument
independently. Instead, I will incorporate my discussion of excess
parity in the ineffectiveness argument.
While modification of a consent decree is warranted if
there is "a significant change either in factual conditions or in
law," Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 384
(1992), "a party seeking modification of a consent decree bears the
burden of establishing that a significant change in circumstances
warrants revision of the decree." Id. at 383. The Candidates have
failed to carry this burden.
-55-
A. Ineffectiveness of the Decree.
The Candidates assert that although 39.9% of entry-level
firefighters in the BFD are minorities, only 6.2% (22 of 350) of
uniformed personnel above the rank of firefighter are minorities.
They assert that "after 28 years, this is not a temporary status,"
and that continuation of the decree will only increase disparity in
favor of minorities at the entry level. Claimants argue that this
changed circumstance implicates narrow tailoring because the
Beecher decree has proven ineffective in achieving its goals. In
other words, the unexpected barrier between the entry-level and the
upper ranks, experienced by minorities within the BFD, demonstrates
that the race-conscious hiring process is not narrowly tailored to
serve the decree's goals of parity within the BFD.
Interestingly, the majority's narrow tailoring argument
and the Candidates's narrow tailoring argument are based on
contradictory factual premises. The majority rejects the inclusion
of higher ranks in the computation of parity because, in part, such
inclusion unconstitutionally transforms the decree into an
instrument of "general leverage favoring minorities" in promotions.
By contrast, the Candidates assert that the decree is
unconstitutional because it is ineffective in furthering the
promotion of minorities to the upper ranks.
There are two ways to understand the Candidates'
ineffectiveness argument. The Candidates may be arguing that the
-56-
Beecher decree, as originally conceived, requires parity at both
the entry-level and among the upper ranks. Because of the alleged
barrier to the promotion of minority firefighters, the Candidates
contend that the decree is ineffective in achieving this goal.
Alternatively, they may be arguing that the purpose of the decree
is to achieve parity in the department as a whole, irrespective of
the distribution of minorities at all levels of the department.
Given the barrier to promotions, they assert that the only way this
parity can be achieved is indirectly -- that is, by impermissible
"overloading" of minorities at the entry-level to "offset" the lack
of diversity in the upper ranks -- and that this effect is fatal to
narrow tailoring. I will address separately these variations of
the ineffectiveness argument.
1. Parity at the Entry Level and in the Upper Ranks
The Candidates's first ineffectiveness argument is
premised on their characterization of the original purpose of the
decree, described as an assumption. That is, they attribute to the
district court in Beecher the assumption that "once the
discriminatory effects of the entrance hurdles were removed,
minorities would trickle through the fire department somewhat
evenly." There is a basic flaw in this premise. At the time the
Beecher decree was entered, the percentage of minority firefighters
in the BFD was less than one percent. It would have been pointless
for the Beecher court to make any assumptions about promotion
-57-
practices when the total number of minorities in the BFD was
negligible. Moreover, the court did not enter its decree only to
remedy discrimination in the Boston fire department. The Beecher
court made fifty-five other municipalities in Massachusetts subject
to the Beecher decree, and specifically noted the
disproportionately low percentage of minorities in the "total
force" of other towns.17 Essentially, there were few minorities to
promote in any of the cities or towns, and the Candidates never
explain why the Beecher court would have made any assumptions about
promotion practices. Therefore, it is unpersuasive to attribute to
the Beecher court the assumption described in the Candidates' brief
that "once the discriminatory effects of the entrance hurdles were
removed, minorities would trickle through the fire department
somewhat evenly." Instead, it is more reasonable to attribute to
the Beecher court the goal reflected in the explicit language of
the decree: "a complement of minorities commensurate with the
percentage of minorities" within each municipality. Beecher, 371
F. Supp. at 523. The City, an original party to the decree, states
17
"The City of Springfield has a black population of
approximately 13%. Of 475 firefighters in that city, one is black
and none are Spanish-surnamed. The one black represents 0.2% of
the total force. The City of Cambridge has a black population of
6.1%, and a fire fighting force of 305 men, four of whom are black;
one is Spanish-surnamed. They represent approximately 2% of the
total force. New Bedford has a black population of approximately
3.5%. Minorities represent approximately 1% of the fire force.
Worcester has a black population of approximately 2%. Minorities
represent 1% of the fire force there." Beecher, 371 F. Supp at 514
(emphasis added).
-58-
the purpose of the decree well in its brief: "increasing the total
gross proportion of minority fire personnel in each appointing
authority."
Indeed, as noted earlier, the Beecher court discusses the
purpose of the decree in its original opinion ordering remedial
action and establishing the framework for the subsequent consent
decree. There it states that in 1974 "blacks and Spanish-surnamed
persons represent such an insignificant percentage of the force,"
and that these "present effects of past discrimination must be
remedied." Beecher I, 371 F. Supp. at 519-20. The decree says
nothing about anticipating racial proportionality in both the
entry-level and the upper ranks. The Candidates' argument of
ineffectiveness in achieving such proportionality fails because it
is premised on a goal that is nowhere discernible in the Beecher
decree or decision.
2. Parity in the Department as a Whole
Even if the purpose of the Beecher decree is to diversify
the entire department, without regard to the even distribution of
minorities in the entry level and upper ranks, the Candidates argue
that, given the barrier to minority promotion in the department,
continuation of the decree will only increase disparity in favor of
minorities at the entry level. From this changed circumstance, the
Candidates offer a complicated narrow tailoring argument that does
not lend itself to easy summary. Hence, I quote it at length:
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If the method of promotion is appropriate, is
not discriminatory, and nevertheless leads to
racial disparity at the top levels, then it is
inappropriate to try to "offset" legitimate
promotions with an increased minority presence
at the bottom. In other words, parity may
currently exist in the upper levels of the
Fire Department, in that it may reflect the
appropriate proportion of minorities in the
qualified labor pool for such promotions. . .
. If so, this parity can not be used to
justify further hiring quotas in the lower
ranks.
In the alternative, if lack of minorities at
the top levels is the result of a
discriminatory promotional procedure (of which
there is no proof), the requirement to
"narrowly tailor" racial preferences requires
that the specific promotional problem be
addressed directly, and not indirectly through
affirmative action at the lowest level.
Indeed, more minorities in a lower position
does not remedy the problem of a
"discriminatory" promotional process.
To comply with strict scrutiny, a racial
remedy must be effective. It is inappropriate
to address alleged disparity in the upper
ranks indirectly using racial preferences to
fill the lower ranks, when minorities are not
being promoted in proportionate numbers.
The Candidates's narrow tailoring argument asserts that
there are only two possible causes for the discrepancy between the
percentage of minorities at the entry-level and the percentage of
minorities in the upper ranks: (a) the low percentage of minorities
in the upper ranks is an accurate reflection of the qualified
applicant pool, or (b) the low percentage of minorities reflects
discrimination in the promotion process. They say that if the
barrier to promotion is due to the lack of qualified minority
-60-
applicants, then the decree is not narrowly tailored because it
requires the overloading of minorities at the entry-level to offset
this dearth of minorities qualified for the upper ranks.
Alternately, if the barrier to promotion is due to discrimination,
the decree is ineffective in addressing this problem because it
focuses only on hiring practices. Since there are only two
possible causes of the discrepancy between the percentage of
minorities at the entry-level and the percentage of minorities in
the upper ranks, and each cause demonstrates that the decree is not
narrowly tailored to serve the decree's goals of parity within the
entire Fire Department, the Candidates argue that this "conundrum,"
as they describe it, conclusively proves that the decree fails the
narrow tailoring test.
This logic reveals another flawed premise. Causes (a)
and (b) do not represent the universe of possible explanations for
the discrepancy. In fact, the City offers a third plausible and
constitutionally sound explanation. Based on its experience with
public employment affirmative action programs, the City posits that
it may just take a long time for affirmative action measures at the
entry level of the BFD to influence minority representation in the
higher ranks. Instead of being evidence of a barrier to promotion,
the fact that only 6.2% of the higher ranks of the department is
minority may evidence an inescapably slow process of growing
diversity throughout the department. At the time the Beecher
-61-
decree was implemented in 1974, minorities represented only 0.9% of
the total BFD. Beecher I, 371 F. Supp at 514. While far from
representative of the minority population of the community, the
6.2% minority representation in the upper ranks is a significant
increase indicating that the decree, however slowly, is fostering
diversity in the upper ranks. Indeed, there has been a
demonstrable increase in the number of minority officers recently.
The City's response to the Candidates' interrogatories, included in
the summary judgment record, indicates that there were 17 minority
officers in 1998, 18 in 1999, and 22 in 2000. Over a span of two
years, the percentage of minority officers increased from 4.8% to
6.2%.
Moreover, the slow rate of change in the officer ranks is
not surprising in an organization the size of the BFD. While the
department employs over 1500 firefighting personnel, only 350 of
those hold officer positions -- less than 25 percent. Although the
record reveals that it is not uncommon for Boston to hire 50 new
firefighters in a particular year, it is highly unlikely that a
department with only 350 officer positions will promote that many
over the same time period. Because the annual promotion rate will
generally be much lower than the annual hiring rate, evidence that
minorities are not penetrating the upper levels of the department
as quickly as the entry level is predictable. In concluding that
there is an intractable barrier to minority promotion in the
-62-
department merely because there are only 22 minority officers, the
Candidates take too grudging a view of progress.
With their conundrum argument, the Candidates have
constructed an argument designed to succeed on the basis of logic
instead of proof: because both of the possible explanations for
the discrepancy between the percentages of minorities in the entry-
levels and upper ranks indicate a lack of narrow tailoring, they
assert that they do not have to prove the reality of either
explanation. However, as noted, the logic is faulty because it
fails to account for other plausible and constitutionally sound
explanations for the discrepancy. Therefore, even on the
assumption that there might be a narrow tailoring problem with the
Beecher decree if either of the Candidates' explanations of the
discrepancy were real (unqualified applicants for promotion or
discriminatory promotion practices), the Candidates must offer
proof of one of these explanations. They have failed to do so.
As the Candidates themselves point out, there is no
evidence of discriminatory promotion practices. The alternative
"unqualified applicants" explanation18 is objectionable on a number
of grounds. First, the Beecher court found that the entrance
examination for firefighters was not indicative of job performance
18
The Candidates elaborate on this explanation as follows:
"[B]ecause affirmative action benefits minorities that score lower
on the entrance examinations . . . [w]hen these lower scorers seek
promotions, they are competing against non-minorities who have
scored at the very top of the entrance examination."
-63-
and had a discriminatory impact on minorities. Beecher 371 F.
Supp. at 517-18. Second, as we made clear in Mackin, 969 F.2d at
1278, the Beecher court specifically designed the decree to require
the hiring of only qualified applicants. Third, the Candidates
themselves assert that the entry-level and promotional positions
have "markedly different skill, experience and knowledge
requirements," making performance on the entrance examination of
little relevance to promotional success. There is simply no proof
in this record that the 6.2% statistic represents the "appropriate
proportion of minorities in the qualified labor pool for such
promotions."
The Candidates bear the burden of proving the existence
of changed circumstances undermining the constitutionality of a
consent decree. Rufo, 502 U.S. at 383. Mere recitation of the
current statistics describing the racial composition of the entry-
level and upper ranks is insufficient. Thus, the Candidates have
failed to carry their burden of proving substantial changed
circumstances affecting the constitutional validity of the decree.
B. Duration of the Decree
Although we rejected this argument when we decided
Mackin, the Candidates argue that the passage of time (now twenty
eight years) is itself a changed circumstance that demonstrates the
ineffectiveness of the Beecher decree. That argument is as
unpersuasive now as it was when we decided Mackin. Then we said:
-64-
[T]he decree's life is limited, remaining in force
only until its requirements have been met. . . .
Indeed, the proof of the present pudding is that,
since 1974, more than fifty percent of the
communities originally affected by the decree have
already been freed from further oversight.
Mackin, 969 F.2d at 1278 (citations omitted).
Today, the fifty percent figure cited in Mackin ten years
ago has reached eighty percent, with forty-five out of fifty-six
communities originally affected by the decree having now achieved
parity and thus exclusion from further oversight. The Beecher
decree remains limited in duration because it is extinguished upon
the achievement of a demonstrably attainable rough parity. See
Beecher, 371 F. Supp. at 523 (providing for release from
appointment process mandated by the decree "as a city or town
achieves a complement of minorities commensurate with the
percentage of minorities within the community"). Limitations of
this sort are crucial factors in evaluating overbreadth challenges.
See Stuart v. City of Boston, 951 F.2d 446, 454 (1st Cir. 1991).
Nothing about the race-conscious appointment process of the Beecher
decree resembles "remedies that are ageless in their reach into the
past, and timeless in their ability to affect the future." Wygant
v. Jackson Bd. of Educ., 476 U.S. 267, 276 (1986); see also City of
Richmond v. J.A. Croson Co., 488 U.S. 469, 498 (1989). With so
much compliance elsewhere, and with so much progress in Boston
towards rough parity, the mere passage of time does not demonstrate
the decree's ineffectiveness.
-65-
IV. Conclusion
At least since our decision in Mackin ten years ago, the
Beecher decree has had a settled meaning. Pursuant to that settled
meaning, the fire departments of eighty percent of the
municipalities subject to the Beecher decree have achieved
compliance with it. Now, faced with a renewed challenge to the
decree by Candidates who feel themselves unfairly barred from
employment opportunities in the BFD, the majority finds new meaning
in an old decree. I disagree with that conclusion. It cannot be
reconciled with our precedent in Mackin, sound principles of
interpretation applicable to a consent decree, or the history of
this case. Taking a different tack, the Candidates challenge the
Beecher decree by constructing changed circumstances arguments that
are unpersuasive because of faulty logic, the absence of proof, and
prior rejection in Mackin.
The Beecher decree is not just about the BFD. It was and
remains a decree applicable to other cities and towns in
Massachusetts. Although it is regrettable that the substantial
progress of the BFD in ending its discriminatory hiring practices
has not yet reached the goal of rough parity required by the
decree, that remaining gap is no justification for altering a
decree which requires, with a formula now long accepted, that the
"present effects of past discrimination must be remedied."
Beecher, 371 F. Supp. at 520. Until that gap is closed, the
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remedial purpose of the decree remains unfulfilled. We should stay
the course, not abandon it. I respectfully dissent.
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Quinn v. City of Boston
Court: Court of Appeals for the First Circuit
Date filed: 2003-03-27
Citations: 325 F.3d 18
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