No. 85-999 Argued: November 12, 1986 --- Decided: February 25, 1987

JUSTICE BRENNAN announced the judgment of the Court and delivered an opinion in which JUSTICE MARSHALL, JUSTICE BLACKMUN, and JUSTICE POWELL join.

The question we must decide is whether relief awarded in this case, in the form of a one-black-for-one-white promotion requirement to be applied as an interim measure to state trooper promotions in the Alabama Department of Public Safety (Department), is permissible under the equal protection guarantee of the Fourteenth Amendment.

In 1972, the United States District Court for the Middle District of Alabama held that the Department had systematically excluded blacks from employment in violation of the Fourteenth Amendment. Some 11 years later, confronted with the Departments failure to develop promotion procedures that did not have an adverse impact on blacks, the District Court ordered the promotion of one black trooper for each white trooper elevated in rank, as long as qualified black candidates were available, until the Department implemented an acceptable promotion procedure. The United States challenges the constitutionality of this order. [n1]

I

Because the Departments prior employment practices and conduct during this lawsuit bear directly on the constitutionality [p154] of any race-conscious remedy imposed upon it, we must relate the tortuous course of this litigation in some detail.

A

In 1972, the National Association for the Advancement of Colored People (NAACP) brought this action challenging the Departments longstanding practice of excluding blacks from employment. The United States was joined as a party plaintiff, and Phillip Paradise, Jr., intervened on behalf of a class of black plaintiffs. District Judge Frank M. Johnson, Jr., determined:

Plaintiffs have shown without contradiction that the defendants have engaged in a blatant and continuous pattern and practice of discrimination in hiring in the Alabama Department of Public Safety, both as to troopers and supporting personnel.

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