Full opinion text
MEMORANDUM AND ORDER YOUNG, Chief Judge. I. INTRODUCTORY BACKGROUND This is a case of alleged racial discrimination. Such cases come in two types. The first involves allegations of public or private racial discrimination which are denied. While such cases give rise to complex problems of proof, the duty of a court once racial discrimination is established is clear and undoubted — to extirpate racial discrimination root and branch, adequately compensate its victims, and creatively invoke its equitable powers to provide equal opportunity to all citizens free of the blight of racial animus. The second involves state-sponsored racial discrimination. Since, in certain narrowly-tailored circumstances, such state sponsored discrimination is at present undoubtedly lawful, such cases necessarily involve an exploration of whether justifying circumstances exist. This is such a case. At the outset, therefore, it is appropriate to acknowledge two extraordinarily difficult aspects of any such case which sadly but inevitably make its resolution suspect and less acceptable to our society as a whole than is usually the case with a carefully-considered judicial opinion. The first is a problem of definition. As a society we acknowledge and bewail our deeply troubled racial history — the horrors of slavery, the tawdry (and frequently violent) legacy of Jim Crow, the subtle (and not so subtle) resistance to conferring genuine equal rights and equal opportunities upon all Americans. When we attack racial discrimination head on, problems of racial definition rarely arise because they are subsumed in the proof that a particular person or group has, in fact, been the victim of discrimination on the basis of racial animus. When the state itself seeks to discriminate on the basis of “racial factors,” however, and claims such discrimination is legally justified, then the problem of definition becomes acute because all Americans are vitally interested in precisely the basis upon which the state determines to confer governmental benefits such as jobs and promotions. Unfortunately, one searches the authoritative decisions in vain for any adequate definition. The decisions rather casually use terms such as “white,” “black,” “African American,” “Hispanic,” “Native American” and the like, as though we all agreed on their meaning in the specific case. Of course, we do not. See generally, e.g., Rachel F. Moran, The Mixed Promise of Multiculturalism, 17 Harv. BlackLetter L.J. 47 (2001) (arguing that race is becoming a more fluid concept in America as demographics change, and that different racial groups have very different views on the desirability of embracing multiracial identities); Naomi Zack, American Mixed Race: The U.S. 2000 Census and Related Issues, 17 Harv. BlackLetter L.J. 33 (2001) (contending that race is a social and political construct, unsupported by biology, in which courts and lawmakers have acquiesced despite the absence of a foundation for doing so, and that legal recognition of mixed-race groups might help to break down rigid notions of race). There is more wisdom in Tiger Woods calling himself “Cablinasian,” see, e.g., Michael A. Fletcher, Woods Puts Personal Focus on Mixed-Race Identity, Wash. Post, Apr. 23, 1997, at Al, than in all the gross racial classifications found in the governing decisions and the executive actions implementing race-based public policies. Nor is the lack of definition surprising. If we go beyond self-definition and seek to confer some genuine meaning upon race-based identifiers, we rapidly find ourselves slipping into the most abhorrent racial stereotyping and classification — the very conduct directly forbidden by our Constitution and laws. We simply cannot condemn the notorious black codes, see, e.g., Eric Foner, Reconstruction: America’s Unfinished Revolution, 1868-1877, at 199-201 (1988) (outlining provisions of state black codes); Theodore Brantner Wilson, The Black Codes and the South 66-70, 72-75, 78-80 (1965) (same), and Nazi eugenics, see, e.g., 4 Office of U.S. Chief of Counsel for Prosecution of Axis Criminality, Nazi Conspiracy & Aggression 8-9 (1946) (Nazi citizenship law defining who is and who is not a Jew in order to disqualify Jews from German citizenship), quoted in part in Fullilove v. Klutznick, 448 U.S. 448, 534 n. 5, 100 S.Ct. 2758, 65 L.Ed.2d 902 (1980) (Stevens, J., dissenting), while at the same time looking behind self-identification. The very idea of imposing some lexicon of United States government racial definitions is revolting. Here the parties neatly sidestep the issue. This case involves a certain police promotional examination. Those who took the exam were asked to assign themselves to one of a number of pre-fixed racial identifiers. Not everyone did so. Those who did not were nevertheless consigned to a pre-fixed racial classification from the records of the Boston Police Department. It is unclear whether these records are the result of self-classification or observations by someone within the Department. As no party here challenges or seeks to examine these racial classifications, the Court adopts them, pointing out here that they are in the main based on individual self-identification, while a minority of exam takers were somehow assigned a pre-fixed racial classification by the Boston Police Department. Second, the most difficult aspect of this case is the basic premise upon which the Court is required to approach it. Simply stated, the premise is that, as we ultimately seek a colorblind society under our Constitution, it is necessary in certain circumstances to discriminate along racial lines to move toward that society. See, e.g., Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 407, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978) (Blackmun, J., concurring in the judgment in part and dissenting in part) (“In order to get beyond racism, we must first take account of race.”). So imbedded is this premise in our constitutional jurisprudence that it is not for this Court to question it. Still, as discrimination necessarily begets discrimination, as racial discrimination is perhaps our society’s most tragically divisive fault line, and as “[o]ur government is the potent, the omnipresent teacher” that “teaches the whole people by its example,” Olmstead v. United States, 277 U.S. 438, 468, 48 S.Ct. 564, 72 L.Ed. 944 (1928) (Brandéis, J., dissenting), one cannot help but recall the reflexive statement of the field artillery officer in Vietnam: “We had to destroy the village to save it.” II. PRIOR PROCEEDINGS Winifred N. Cotter, Vincent J. DiFazio, John P. Doris, William J. Dwan, William G. Knecht, Michael Locke, Patrick L. Murphy, and Thomas L. Sexton (collectively the “Plaintiffs”), all members of the Boston Police Department (the “Department”), brought this section 1983 action against the City of Boston (the “City”) and James J. Hartnett, Jr. (“Hartnett”), in his official capacity as Personnel Administrator of the Commonwealth of Massachusetts Human Resources Division (the “Division”). The Plaintiffs allege that the City and Hartnett unlawfully discriminated against them in promoting to the rank of sergeant three black officers (the “Black Officers”) who scored 84 on a 1996 civil service exam (the “1996 exam”), while declining to promote the Plaintiffs, who also scored 84. The Plaintiffs claim that the City and Hartnett violated the Fifth and Fourteenth Amendments to the Constitution. The Massachusetts Association of Minority Law Enforcement Officers (“MAMLEO”), along with two of the Black Officers, Dennis A. White and Harold White, entered the lawsuit as defendant-intervenors after getting permission from the First Circuit, Cotter v. Mass. Ass’n of Minority Law Enforcement Officers, 219 F.3d 31 (1st Cir.2000), while Hartnett exited the lawsuit by settling with the Plaintiffs. All of the parties remaining have filed cross-motions for summary judgment. The City acknowledges that it considered race in making its promotion decisions, but responds that it is nonetheless entitled to summary judgment for two reasons. First, the City contends that the Plaintiffs lack standing to complain of the City’s race-conscious decision because the City would not have promoted the Plaintiffs even if the City had made its promotion decisions without regard to race. Second, the City argues that even if the Plaintiffs have standing, the City’s actions were narrowly tailored to further three compelling government interests: advancing the operational needs of the City by ensuring a diverse police force that represents the communities it serves, remedying past discrimination perpetrated by the Department against minorities, and avoiding a lawsuit from MAMLEO or disgruntled minority officers. MAMLEO’s motion for summary judgment focuses on the past discrimination of the Department, and on the disparate impact the 1996 exam had on minority officers vis-a-vis white officers. MAMLEO posits that the City’s interests in complying with applicable federal antidiscrimi-nation law and, correlatively, in avoiding a lawsuit from MAMLEO or others that they claim would have surely followed from the violation of such law, constitute compelling state interests. Completing the strict scrutiny two-step, MAMLEO argues that the City’s actions were narrowly tailored to further those interests. The Plaintiffs reject these arguments and respond with a summary judgment motion of their own. The thrust of the Plaintiffs’ argument is that most of the justifications for the City’s use of race in making the promotion decisions are post hoc rationalizations that were not considered by the City at the time it made the decisions. According to the Plaintiffs, the only justification that was actually considered at the time of the promotion decisions was compliance with the EEOC Uniform Guidelines on Employee Selection Procedure (the “EEOC Guidelines”), which the Plaintiffs claim are no longer applicable to the Department as a result of the expiration of a consent decree between the Department and MAMLEO that arose out of prior litigation. As such, according to the Plaintiffs, the City is left with no valid, much less constitutionally compelling, justification for its admittedly race-based actions. The Plaintiffs argue further that, even if any of the justifications proffered by the City were actually considered by the Department at the time the decisions were made, and even if they are ruled to be compelling by this Court, the promotion decisions were not narrowly tailored, because other, less race-conscious measures were available. III. UNDISPUTED FACTS On October 19,1996, the Division administered the 1996 exam for the purpose of selecting police officers within the Department for promotion to the rank of sergeant. Am. Compl. ¶ 18 [Docket No. 13]; Callahan Aff. ¶ 8 [Docket No. 94], Thirty-three black officers and 192 non-black officers achieved a passing score. Callahan Aff. ¶ 11. In September 1997, the Department decided to promote 30 police officers to the rank of sergeant. Id. ¶ 8; Evans Aff. ¶ 3 [Docket No. 93]. In October 1997, the Division certified a list of 69 candidates from all of the applicants who passed the 1996 exam; the scores of the candidates on the certified list ranged from 92 to 82. Am. Compl. Ex. A; Callahan Aff. Ex. A. It was from this list certified by the Division that the Department was to draw in making promotions to sergeant. In December 1997, the Department promoted 30 police officers to sergeant from the certified list. Evans Aff. ¶ 3; Callahan Aff. ¶ 8. Before making the promotions, however, the Department discovered that if it promoted in strict rank order from one to 30, 29 non-black officers and only one black officer would be promoted. Id. ¶ 9. The Department further learned that such a promotion plan would violate the EEOC Guidelines “four-fifths rule,” which states that a selection procedure adversely impacts minorities if it yields a selection percentage for candidates from a minority group that is less than four-fifths of the selection percentage for non-minority candidates, 29 C.F.R. § 1607.4(D). Callahan Aff. ¶ 9. Specifically, the Department calculated that if it promoted only one black officer out of the 33 black officers who passed the 1996 exam (3% selection percentage) while promoting 29 non-black officers out of the 192 who passed the 1996 exam (15% selection percentage), the ratio of the black officer selection percentage to the non-black officer selection percentage would be around 20% (3% divided by 15%), id. Ex. B, well below the 80% required to avoid an inference of disparate impact. The Department therefore thought that it might be vulnerable to litigation by minority officers unless it promoted an additional three black officers, which would yield a total of four black officers promoted and would bring the Department into compliance with the four-fifths rule. This change would lead to a 12% selection percentage among black officers (4/33) compared to a 14% selection percentage among non-black officers (26/192), yielding a black/non-blaek selection percentage ratio of approximately 89%. Id Ex. B. The Department’s December 1997 promotions therefore included the three Black Officers who scored 84 on the 1996 exam, but excluded five non-black applicants who scored 85 on the 1996 exam. Because the Department’s promotion decisions departed from a strict rank order approach, the Department submitted an explanation to the Division for its decisions, as is required by law, Mass. Gen. Laws ch. 31, § 27. The Department explained to the Division that the Department believed that the departure was necessary in order “to ensure compliance with current EEOC guidelines, and applicable federal and state discrimination laws.” Am. Compl. Ex. B. The Division, believing that the Department’s explanation for the departure was premised on an incorrect assumption that the Department was still bound by a consent decree between MAMLEO and the City that had expired in 1995 which explicitly required the City to comply with the EEOC Guidelines, rejected this departure from strict rank ordering. Id. Ex. D. Because the Department had already made the promotion decisions that were now being challenged by the Division, it was loathe to alter its decision in a way that would require it to rescind offers of promotion already made. Accordingly, the Department responded to the Division’s objection by requisitioning from the Division six additional sergeant positions, so that the Department could promote the five officers who scored 85 on the 1996 exam who were bypassed under the original proposal, Evans Aff. ¶ 8, and one officer who was originally bypassed for cause, Callahan Aff. at 4 nn.1-2, while maintaining the promotional status of the Black Officers, Am. Compl. Ex. G. This yielded a total of 36 new sergeants, 32 of whom were white, four of whom were black. Callahan Aff. ¶ 15. The Division did not object to this arrangement. Id. ¶ 14. Although the revised promotion arrangement technically proceeded in strict rank order, ten white officers who scored 84 were not promoted. Seven of those officers filed suit against the City and Hartnett, in his official capacity as Personnel Administrator for the Division. Since the promotions at issue in this case, the Department has not relied on the 1996 exam to make any more promotions to the rank of sergeant. Callahan Aff. ¶ 16. Another exam was administered in 1998, id. ¶ 17, and all promotions to sergeant since the ones at issue here have proceeded in strict rank order, except for bypasses for cause, which are usually for disciplinary reasons, Evans Aff. ¶ 13. IV. DISCUSSION The parties do not dispute the facts as they are presented above. The Plaintiffs allege that the City improperly took account of race when it made its promotions decisions based on the 1996 exam. The City acknowledges that it took account of race in making the promotion decisions. According to the City, however, its use of race was constitutionally permissible, a limited and targeted method of achieving the City’s compelling government interests. This Court is thus not charged with the responsibility of assessing conflicting factual accounts to determine whether, when construed most favorably to the non-moving party, the facts would permit a favorable ruling for that party (the typical trial court responsibility at the summary judgment stage). Rather, this Court must determine whether the reasons proffered by the City for its unmistakably race-conscious action are legally sufficient justifications. Before turning to the merits of the Plaintiffs’ Fourteenth Amendment claim, however, the Court addresses the question whether the Plaintiffs have standing to litigate this case in the first place. A. Standing The first defense raised by the City is its argument that the Plaintiffs would not have been promoted even if the Department had not taken account of race in making the promotions, and thus they have no standing to complain of the Department’s use of race. City’s Mem. at 4-6 [Docket No. 92]. In support of this contention, the City states that had it not been allowed to consider race in making promotions to sergeant from the 1996 exam, then no one who scored 84 on the exam, including the Plaintiffs, would have been promoted. Id. at 5; Evans Aff. ¶ 12. Instead, the City would have promoted 30 officers in accordance with its original requisition, but would have proceeded in strict rank order, meaning that only those candidates who scored 85 or higher, and only some of those who scored 85, would have been promoted. City’s Mem. at 5; see also Am. Compl. Ex. A (certified list in rank order). The Plaintiffs, who scored 84, would not have been promoted even under this strict rank order approach. 1. Standing Generally Article III of the Constitution limits the power of the federal courts to actual cases or controversies. See U.S. Const, art. Ill, § 2. To give meaning to this otherwise open-textured provision, the Supreme Court has established three criteria that form the “irreducible constitutional minimum” that must be shown in order for a plaintiff to have standing: First, the plaintiff must have suffered an injury in fact — an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of — the injury has to be fairly ... trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (citations and internal quotation marks omitted). The Court considers these three criteria in turn. First, the Plaintiffs must show that they suffered injury in fact. In a case such as this, where a plaintiff alleges that a defendant accorded unequal treatment to the plaintiff on the basis of race while the plaintiff competed for a government benefit, injury in fact is established by showing “the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit.” Northeastern Fla. Chapter of Associated Gen. Contractors v. City of Jacksonville, 508 U.S. 656, 666, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993). In other words, the Plaintiffs need not show that they would have been promoted but for the race-consciousness of the Department in order to demonstrate that they suffered concrete, particularized injury. They “need only demonstrate” that they were “able and ready to [compete] and that a discriminatory policy prevented] [them] from doing so on an equal basis.” Id.; see also Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 210, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995) (“Adarand need not demonstrate that it has been, or will be, the low bidder on a Government contract. The injury in cases of this kind is that a discriminatory classification prevents] the plaintiff from competing on an equal footing.”) (internal quotation marks omitted); Wooden v. Bd. of Regents of Univ. Sys. of Ga., 247 F.3d 1262, 1279 (11th Cir.2001) (“[T]he Supreme Court’s standing jurisprudence in this area unmistakably turns the focus away from ... result-oriented analysis and toward a process-oriented analysis that asks whether the plaintiff has actually been exposed to unequal treatment.”). Here, the Plaintiffs took a civil service exam in good faith, aspiring to become sergeants. They indicated that they would accept the promotion if they were chosen. Am. Compl. Ex. A. By the objective measure of qualification for the job of sergeant, they were identical to the Black Officers. But they were not considered for promotion because they were not black. This is the heartland of cognizable injury in a discrimination case. The Plaintiffs were not allowed to compete on an equal footing with the Black Officers because of their race. This is a sufficiently concrete, particularized, and personal injury to satisfy the first criterion of constitutional standing. The second criterion of constitutional standing, causation, follows easily once injury in fact is defined correctly in a discrimination case. Due to the Department’s decision to select three officers who scored 84 for promotion because of their race, ten other officers who also scored 84 were denied the opportunity to compete on an equal, race-neutral footing. There can be no doubt that the Department’s actions, as opposed to the actions of some intervening third party, caused the Plaintiffs’ inability to compete on an equal basis with the Black Officers. To satisfy the third requirement of standing, redressability, the Plaintiffs need not show that they would have been promoted in the absence of the alleged discrimination. Instead, a plaintiff need only show that it is likely, as opposed to speculative, that a favorable ruling will redress the plaintiffs injury. Lujan, 504 U.S. at 561, 112 S.Ct. 2130. To hold that Plaintiffs must show that they would have been promoted in the absence of racial considerations would collapse the standing inquiry in discrimination cases into a judgment on the merits of the case, and would require the plaintiff to demonstrate a winning case on the issues of causation and damages just to get through the courthouse doors. See Wooden, 247 F.3d at 1280. A contrary ruling would also eviscerate the Supreme Court’s careful definition of injury in fact in discrimination cases, and replace it with a standard the Supreme Court has explicitly rejected. Adarand, 515 U.S. at 211, 115 S.Ct. 2097; City of Jacksonville, 508 U.S. at 666, 113 S.Ct. 2297. All the Plaintiffs need show at this point is that a favorable ruling — a ruling that the City engaged in race-conscious decision making that is either not justified by a compelling interest or not narrowly tailored to achieve that interest — would redress their legal injury. If the Court were so to rule, the Plaintiffs would be allowed to compete in future rounds of promotions on an equal footing with other officers without regard to race. The Plaintiffs’ injury, properly understood, is thus redressable by a favorable ruling on the merits. The City relies principally on two cases, one from the Supreme Court, one from the District of Massachusetts, for the proposition that the Plaintiffs must show that they would have been promoted in the absence of improper consideration of race by the City in order to have standing to proceed. In Texas v. Lesage, 528 U.S. 18, 120 S.Ct. 467, 145 L.Ed.2d 347 (1999) (per curiam), the Supreme Court held that “even if the government has considered an impermissible criterion in making a decision adverse to the plaintiff, it can nonetheless defeat liability by demonstrating that it would have made the same decision absent the forbidden consideration.” Id. at 20-21, 120 S.Ct. 467. In Lesage, the Supreme Court granted summary judgment to the University of Texas against an unsuccessful applicant to the University’s graduate school of education who sought damages based on the University’s consideration of race in admitting and rejecting applicants. The University admitted that it considered race in making admissions decisions, but argued that Lesage, who ranked below 73 of the 223 applicants for 20 spots in terms of grades and GRE scores, would not have been admitted even if the University had been barred from considering race. Id. at 19,120 S.Ct. 467. Lesage is not instructive on the issue of standing, but instead addresses how a defendant in a discrimination case may defeat liability on the merits even though the plaintiff has shown that the defendant im-permissibly considered race in making the challenged decision. The Supreme Court did not mention standing specifically in Lesage. Instead, the Supreme Court referenced Mount Healthy City Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), a case in which the Supreme Court held that a defendant may defeat liability on the merits for a constitutional violation (in that case, terminating the plaintiff for engaging in protected speech) by showing by a preponderance of the evidence that the same decision' would have been made in the absence of the constitutional violation, id. at 285-87, 97 S.Ct. 568. Lesage, 528 U.S. at 20-21, 120 S.Ct. 467. Mount Healthy addresses the issue of causation in constitutional tort cases. It permits the defendant to show that legitimate as opposed to impermissible factors were the principal cause of the plaintiffs harm. Mount Healthy, and accordingly Lesage, do not address the question whether the Plaintiffs have made the threshold showing that they may bring a suit in the first instance. See Saunders v. White, No. Civ. A. 99-2807(RCL), 2002 WL 338744, at *12 n. 21 (D.D.C. Mar. 4, 2002) (observing several problems with the approach of other courts to equate Lesage with standing, specifically that Lesage does not mention standing explicitly and that such an approach “unnecessarily conflates the standing inquiry with the actual merits the plaintiffs claim”). But see Wooden, 247 F.3d at 1277 (suggesting that, in spite of the absence of reference to standing in Lesage, the decision “plainly bears on that [kind of] inquiry”); Boston’s Children First v. Boston Sch. Comm., 183 F.Supp.2d 382, 393 (D.Mass.2002) (Stearns, J.) (“If the result would have been the same, regardless of the plaintiffs race ... [t]he plaintiff ... would lack standing.”). The Court therefore rejects the argument that Lesage compels a denial of standing to a plaintiff who cannot conclusively show that, absent the impermissible government action, he or she would have received the government benefit sought. The City also relies upon Donahue v. City of Boston, 183 F.Supp.2d 202 (D.Mass.2001) (Tauro, J.), a case in which the court dismissed on standing grounds a claim of reverse discrimination brought by a white applicant to become an officer of the Boston Police Department, based on the fact that during one round of hiring, “the Department would have had to consider 586 applicants ahead of Donahue for thirteen spots,” while during a second round of hiring “the Department would have had to consider 117 candidates for ... seven spots before it reached Donahue.” Id. at 209. Donahue is distinguishable from the facts of this case. In Donahue, the court denied standing to a competitor for a government benefit, even though the defendant admitted that it took account of race in making- its decisions, because the plaintiff “was eliminated from possible appointment before race ... was a factor.” Id. at 208-09. In other words, Donahue was not denied the opportunity to compete on an equal footing with those of all races. He simply was eliminated from the competition before the competition became unequal. He thus did not suffer the kind of injury that discrimination lawsuits are designed to redress. Donahue resembles Wooden insofar as Wooden denied standing to one plaintiff who challenged the University of Georgia’s admittedly race-conscious admissions policy because that particular plaintiff was denied admission solely on the basis of grades and test scores, before the plaintiff even reached the stage of admissions decisions where race was taken into account, Wooden, 247 F.3d at 1281-83. See Donahue, 183 F.Supp.2d at 208-09 (likening Donahue’s circumstances to those of the Davis plaintiff in Wooden). Donahue also resembles a recent Sixth Circuit decision, Aiken v. Hackett, 281 F.3d 516 (6th Cir. 2002), where that court ruled that plaintiffs, who were not among a group of white police officers who were “bumped” in order to promote black officers out of rank order to sergeant, lacked standing to litigate an antidiscrimination case. In Aiken, the court stated that it was “beyond debate” that the plaintiffs would not have been promoted to sergeant in the absence of an affirmative action program, because the plaintiffs’ “composite scores (not the City’s affirmative action program) kept them from being promoted.” Id. at 519-20. These cases — Donahue, Wooden, and Aiken — do not resemble this case. The plaintiffs in those cases were so clearly out of the running for the government benefits they sought that race never became an issue in their competition. Here, the Plaintiffs were on the cusp of being promoted to sergeant. They obtained the exact same score on the 1996 exam that the Black Officers obtained. Had the Department been forced to proceed in a strictly race-neutral fashion, it is possible that the Department, in pursuit of more promotions of black officers to sergeant, would have promoted all the candidates who scored 84 on the 1996 exam, including the Plaintiffs. This is especially so given the fact that the Department informed the original 30 officers who were promoted of their promotions before explaining its departure from strict rank order to the Division and readjusting its promotion plan in response to the Division’s objections. See Evans Aff. ¶ 8. Rather than rescind offers of promotion it made to some of those officers upon learning of the Division’s objection to the Department’s promotion decisions, the Department simply requisitioned more sergeant positions. Id.; Callahan Aff. ¶ 15. It is thus possible that, had the Department been forced to ignore race altogether, it would have requisitioned enough sergeant positions to promote everyone who scored 84 or better, in order to maintain the promotion status of the Black Officers, but in a completely race-neutral fashion. This would have allowed the Department to promote four black officers to sergeant, rather than just one, even if it meant promoting an additional 10 non-black police officers to sergeant. And, of course, this would have led to the promotion of the Plaintiffs. For these reasons, the Court is satisfied that the Plaintiffs have made the requisite showing under Lujan that they have standing to litigate this case. 2. Standing to Seek Injunctive Relief MAMLEO asserts that Plaintiffs lack standing to seek injunctive relief. Relying upon City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983), MAMLEO argues that the Plaintiffs have made no showing that they will be affected by the allegedly unlawful conduct of the City in the future, as is required for a plaintiff to have standing to seek injunctive relief. MAMLEO’s Mem. at 20 [Docket No. 108]. In order to have standing to seek injunctive relief, a plaintiff must not only satisfy the requirements of standing outlined in Lujan, but must also establish a “real and immediate threat” that the alleged wrongful conduct will be perpetrated by the defendant against the plaintiff again in the future. Lyons, 461 U.S. at 105, 103 S.Ct. 1660; see also Blake v. Southcoast Health Sys., Inc., 145 F.Supp.2d 126, 132-34 (D.Mass.2001) (applying Lyons). In Lyons, the plaintiff was injured after being placed in a control choke hold by members of the Los Angeles Police Department during a routine traffic stop. The plaintiff sought injunctive relief against further use of the choke hold by the Department except in cases where the target of the choke hold threatened immediate use of deadly force. The Supreme Court held that the plaintiff lacked standing to seek injunctive relief, explaining that in order to have such standing the plaintiff would have had not only to allege that he would have another encounter with the police but also to make the incredible assertion either (1) that all police officers in Los Angeles always choke any citizen with whom they happen to have an encounter, whether for the purpose of arrest, issuing a citation, or for questioning, or (2) that the City ordered or authorized police officers to act in such a manner. Id. at 105-06, 103 S.Ct. 1660. Because the plaintiff failed to make such a showing, the Supreme Court denied standing to the plaintiff to seek injunctive relief. In this case, however, the Plaintiffs make out the requisite showing to seek an injunction against future consideration of race by the Department in making promotions. The Plaintiffs’ counsel represents that the Plaintiffs have taken and will continue to take future civil service exams in pursuit of promotion to sergeant. Pis.’ Opp’n to City’s Mem. at 5 [Docket No. 111]. In continuing to seek promotion to sergeant, the Plaintiffs may be exposed to the same of kind of deliberate decision on the part of the Department to treat candidates differently because of their race. To be sure, the City states that all promotions since the ones at issue here have proceeded in strict rank order. Evans Aff. ¶ 13. But this is no guarantee that future promotion decisions, particularly those where the candidates have identical exam scores, will not be made on the basis of race. Police Commissioner Paul F. Evans stated during a deposition that he alone makes determinations regarding what percentage of minority officers at all ranks represents meaningful diversity on the force. Freidel Aff. Ex. 2, at 82-83 (Deposition of Paul F. Evans, day two) [Docket No. 142]. He also stated that he believes he has complete discretion to choose among candidates for promotion with identical scores on the exam. Id. at 84. Given this state of affairs, it is reasonable to expect that in the future the Plaintiffs might obtain a score on a promotion exam identical to candidates of other races, and yet be denied promotion while candidates of other races are promoted. The Commissioner has stated that it is his prerogative to exercise what he believes to be lawful discretion vested in him to achieve what he decides is an appropriate racial balance within the sergeant ranks. At the very least, it may be said that the Plaintiffs will take the test again in the future and may participate in a competition in which they are not on an equal footing with candidates of other races. In short, they face the kind of real and immediate threat of injury that antidiscrimination law is designed to redress. They thus may pursue equitable as well as legal relief. B. Permissibility of the Promotions Under Strict Scrutiny The parties are in agreement that the City’s actions in making promotions on the basis of race are subject to strict scrutiny. Adarand, 515 U.S. at 227, 115 S.Ct. 2097; City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493-94, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989). This is true regardless of the race of the party singled out by the classification, and regardless of whether the race singled out is burdened or benefitted by the classification. Croson, 488 U.S. at 494, 109 S.Ct. 706 (“[T]he standard of review under the Equal Protection Clause is not dependent on the race of those burdened or benefitted by a particular classification.”). Once government action is subject to strict scrutiny, it is incumbent upon the government to demonstrate that the action is supported by a compelling government interest, and that the action is narrowly tailored to further the compelling interest. Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 274, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986). This burden upon the government, however, is “merely one of production.” McLaughlin v. Boston Sch. Comm., 938 F.Supp. 1001, 1010 (D.Mass.1996) (Garrity, J.). At all times, the burden of persuasion rests upon the Plaintiffs to show that the promotion decisions were unconstitutional. Wygant, 476 U.S. at 277-78, 106 S.Ct. 1842; id. at 292-93, 106 S.Ct. 1842 (O’Connor, J., concurring). 1. Compelling Interests The City and MAMLEO proffer three interests they claim are compelling that were furthered by the promotion decisions at issue in this case. First, the City argues that the promotion decisions helped to effectuate the “operational needs” of the Department by ensuring a diverse police force, which is necessary in order to serve a community as diverse as Boston and which, according to the City, has been partly responsible for the precipitous drop in crime in Boston over the past decade. City’s Mem. at 7-13. Second, the City and MAMLEO contend that the promotion decisions were necessary in order to remedy past discrimination within the Department. Id. at 17; MAMLEO’s Mem. at 7-8. Finally, and related to the second justification, both the City and MAMLEO assert that the promotion decisions were required in order to stave off a lawsuit the City claims would have been brought by MAM-LEO or disgruntled minority officers had the City promoted only one black officer out of a sergeant class of 30. City’s Mem. at 17-18; MAMLEO’ Mem. at 16-17. Before examining each of these justifications individually to determine whether they are compelling, the Court offers a few general observations about compelling interests. The Supreme Court has offered little guidance on what constitutes such an interest. As the First Circuit observed in Wessmann v. Gittens, 160 F.3d 790 (1st Cir.1998): [W]e know that [race-conscious] state action is acceptable upon a showing ... that it is needed to undo the continuing legacy of an institution’s past discrimination. We also know that the [Supreme] Court has rejected the “role model” theory as a compelling interest. Beyond these examples, the case law offers relatively little guidance. Id. at 795 (citations omitted). To these guideposts may be added the principle that “an effort to alleviate the effects of societal discrimination is not a compelling interest.” Shaw v. Hunt, 517 U.S. 899, 909-10, 116 S.Ct. 1894, 135 L.Ed.2d 207 (1996). But that is all the help this Court has from above. The Supreme Court has never held, however, that remedying past discrimination is the only interest that may be considered compelling, even though some justices have suggested as much, e.g., Croson, 488 U.S. at 493, 109 S.Ct. 706 (O’Connor, J.) (“Unless [racial classifications] are strictly reserved for remedial settings, they may in fact promote notions of racial inferiority and lead to a politics of racial hostility.”)- The First Circuit, like other courts, has declined to hold that interests not linked to remedying past discrimination may never be compelling, in the absence of a directive from the Supreme Court to do so. Wessmann, 160 F.3d at 795-96; see also Wittmer v. Peters, 87 F.3d 916, 919 (7th Cir.1996) (“A judge would be unreasonable to conclude that no other consideration except a history of discrimination could ever warrant a discriminatory measure unless every other consideration had been presented to and rejected by him.”). As such, this Court will not reject categorically non-remedial justifications for the Department’s race-conscious decision. Instead, the Court must examine the particular justifications submitted by the City and make a legal determination about whether they are compelling in light of the unique circumstances of the Boston Police Department. See Wess-mann, 160 F.3d at 798 (observing that when a court considers whether a particular interest asserted by the government is compelling, “the devil is in the details”). Additionally, in order .for an interest proffered by a defendant to warrant consideration as a compelling interest, it must be an interest that actually motivated the defendant in making the decision at issue. As the Supreme Court stated in Shaw v. Hunt, “a racial classification cannot withstand strict scrutiny based upon speculation about what may have motivated the [decision maker]. To be a compelling interest, the State must show that the alleged objective was the [decision maker’s] actual purpose for the discriminatory classification.” 517 U.S. at 908 n. 4, 116 S.Ct. 1894 (emphasis added) (internal quotation marks omitted). This requirement is consistent with the purpose of strict scrutiny, which is to “smoke out” the reasons why the government took the actions it did, in order to determine whether those reasons justify government consideration of race. Croson, 488 U.S. at 493, 109 S.Ct. 706; cf. Miss. Univ. for Women v. Hogan, 458 U.S. 718, 729-30 & n. 16, 744, 102 S.Ct. 3331, 73 L.Ed.2d 1090 (rejecting defendant’s proffered justification of remedying discrimination against women in the nursing industry as the “actual purpose” for the state’s all-female nursing school, because evidence suggested that almost all nurses within the state were female, and thus females were not discriminated against in the nursing industry). A defendant may not submit a post hoc rationalization for its race-conscious action where it is clear that such a justification never crossed the decision maker’s mind at the time the decision was made. See United States v. Virginia, 518 U.S. 515, 533, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996) (“The justification [for a government classification] must be genuine, not hypothesized or invented post hoc in response to litigation.”). Nevertheless, upon this record the Court rejects the Plaintiffs’ suggestion that the only interest considered by the City at the time the promotions were made was the one articulated by the Department’s Director of Human Resources, Edward P. Callahan, in a letter he sent to the Division explaining the Department’s departure from strict rank order in promoting the Black Officers — namely the desire to comply “with current EEOC guidelines, and with applicable federal and state discrimination laws,” Am. Compl. Ex. B. See Pis.’ Opp’n to City’s Mem. at 8-10, 14-16 (arguing that this is the only interest that may be considered by the Court). When Commissioner Evans was asked at a deposition what his reasons were for promoting the Black Officers to the exclusion of the white officers with the same score on the 1996 exam, he replied, “[a]dverse impact, a diversity at the higher ranks, and to help achieve community policing.” Friedel Aff. Ex. 1, at 48 (Deposition of Paul F. Evans, day one). Evans also stated in a signed report dated July 13, 2001, that when he made the promotions at issue, he did so “to avoid adverse impact under the EEOC Guidelines ‘four-fifths rule,’ ... and to ensure that the Department had a sufficient number of minority sergeants to execute its mission of community policing.” Evans Decl. Ex. A, at 3 [Docket No. 96]. In the Court’s view, the Plaintiffs have failed to create a genuine dispute about that fact that the City did consider its operational needs prior to promoting the Black Officers, and the Court will therefore examine that justification for the City’s action to determine whether it constitutes a compelling interest. a. Operational Needs The first interest articulated by the City as a justification for its consideration of race in promoting the Black Officers is an interest in sustaining the “operational needs” of the Department. More specifically, the City argues that meaningful minority representation within the Department, including at the sergeant level, helps to foster cooperation between police officers and members of the diverse communities they serve, and therefore allows the Department to protect and serve these communities more effectively. The Boston model of “community policing,” in which the Department works with members of various communities to enhance crime prevention measures, offer young people alternatives to criminal activity, and protect communities against hardened criminals, would be in jeopardy, according to the Department, if it was forbidden to consider race in making promotion decisions, at least where the candidates are otherwise equally qualified. E.g., Evans Decl. Ex. A, at 14. The Court explores the City’s argument in greater detail below. In 1990, crime in Boston reached an all-time high. The City faced a record 152 homicides, almost half of which were youth homicides. McDevitt Decl. Ex. A, at 7 (Expert Report of Jack McDevitt) [Docket No. 97], Many of these homicides were concentrated in areas heavily populated by minorities, such as Roxbury, Dorchester, and Mattapan. Id. In response, the City implemented a number of measures designed to work with these and other communities, in order to bolster public trust in and cooperation with police officers who were patrolling those communities. These measures included giving more power to officers at the beat and precinct level in order to give them greater flexibility to address the unique concerns of their communities, id. at 9; assigning officers to particular beats or neighborhoods on a permanent basis, so that officers could get to know and develop a rapport with members of that community, id. at 10; and creating a system of “collaboration among neighborhood residents, community, patrol officers, supervisors, members of the business community, clergy, service providers, academic institutions as well as state and federal law enforcement officials,” id. The results have been phenomenal. The homicide rate in Boston dropped from 152 in 1990 to 31 in 1999, id. at 12, its lowest level since 1961, Evans Decl. Ex. A, tab C, at 1 (City of Boston, 1999 Crime Summary Report) [Docket No. 96]. Overall serious crime in Boston has been reduced by 48% since 1990. Id. Citizen complaints against Boston police officers decreased by 55 percent from 1993 to 1997. McDevitt Decl. Ex. A, at 15. To be sure, some of the decrease in crime and in complaints against police officers is no doubt due to other factors, such as the national economic boom experienced during this time. But the community policing model, which focuses on getting the entire community involved in preventing and fighting crime, deserves at least some of the credit for these numbers. Police Commissioner Evans insists that the success of community policing depends on the ability of the Department to garner the trust of the citizens it serves. Evans Decl. Ex. A, at 5 (Report of Paul F. Evans); see also McDevitt Decl. Ex. A, at 6. In Commissioner Evans’s opinion, “[a] critical component of developing trust, cooperation, and respect is ensuring diversity among the ranks of the Department.” Evans Decl. Ex. A, at 5. This is due to the fact that “when members of the community [can] see themselves among the ranking police officers, they beg[in] to be willing to work with us, rather than against us.” Id. at 13. The Department depends on citizens to provide them with information about criminal activity within their neighborhood, assist in identifying offenders, and testify in court to convict these offenders, as well as to identify young persons who could benefit from services in order to be steered away from criminal activity. McDevitt Decl. Ex. A, at 13, 18, 24. Beyond helping to establish trust with a diverse community, a diverse police force helps further the law enforcement goals of the Department. “For example, if there is an African American drug distribution network developing in a community, an African American officer, acting in an undercover capacity, is much more likely to be able to develop intelligence about the drug dealers involved than a white undercover officer could.” Id. at 24. The City argues that diversity is necessary to further its operational needs not only at the police officer level, but all the way up the ranks of the Department. “If [the Department] has a representative percentage of minority members but very few of those members have ever been promoted to a position of command or leadership the message sent back to the community is that the organization values diversity but only in certain roles, not in leadership positions.” Id. at 25. Diversity at high levels of the Department may also be important to help mediate disputes between members of the community and officers on the beat, “particularly those that involve [minorities].” Id. at 26. This Court understands the City’s need to fight crime and maintain fruitful relationships with the communities served by the Department. The Court is also aware that some courts have been particularly receptive to diversity-based arguments in the law enforcement context. E.g., Wessmann, 160 F.3d at 795; Wittmer, 87 F.3d at 919 (collecting cases). Ultimately, however, the Court cannot accept the City’s argument that operational needs justify race-conscious decision making on the part of the Department for the indefinite future. The City’s argument rests on the cynical assumption that members of a particular race will only cooperate with members of their own race. Commissioner Evans’s report suggests that only when a sufficient number of minorities are on the police force will certain communities “be willing to work with us, rather than against us.” Evans Decl. Ex. A, at 13. Such a policy invites the emergence of a divisive kind of racial politics between communities and the Department, as members of any race might threaten not to cooperate with the Department unless they see representation within the Department roughly proportional to that racial group’s percentage of the population of Boston generally. Cf. Wittmer, 87 F.3d at 920 (rejecting contention that “prison authorities are entitled to yield to extortionate demands from prisoners for guards of their own race”). This kind of divisiveness, fostered by divvying up government benefits along racial lines, is what cases interpreting the Equal Protection seek to avoid. E.g., Croson, 488 U.S. at 493, 109 S.Ct. 706 (expressing concern that non-remedial racial classifications will “lead to a politics of racial hostility”). Additionally, the policy sends a message to officers within the Department that they are nothing more than a product of their race. It relies upon crude stereotypes about how members of the same race act around one another, and how they act around members of other races. It suggests that the valued unit of measurement in the Boston Police Department is the group, rather than the individual. These are impermissible considerations for a government body to entertain. E.g., Miller v. Johnson, 515 U.S. 900, 912, 115 S.Ct. 2475, 132 L.Ed.2d 762 (1995) (“Race-based [decision making] embodies] stereotypes that treat individuals as the product of their race, evaluating their thoughts and efforts — their very worth as citizens — according to a criterion barred to the Government by history and the Constitution.”) (internal quotation marks omitted). Finally, there is no logical stopping point to the Department’s justification. Presumably, the Department will always have an interest in having a diverse police force to serve a diverse community. Therefore, there will always be an incentive for the Department to take account of race if such a justification is held to be compelling, to make sure that the racial makeup of the Department matches the racial makeup of the City. This is an unconstitutional end for a government policy. E.g., Wittmer, 87 F.3d at 920 (rejecting proposition that government “would have been entitled to take steps to make the racial composition of the security staff mirror that of the inmate population.”). All the Department would have to show is that diversity within the Department continues to lead to police-community cooperation, and it would be given carte blanche to continue making race-based decisions. It would permit race-conscious remedies that are “ageless in their reach into the past, and timeless in their ability to affect the future.” Wygant, 476 U.S. at 276, 106 S.Ct. 1842. This justification thus offends the principle that, because remedies for equal protection violations usually involve treating people unequally, such remedies should be limited in scope and in duration. See Croson, 488 U.S. at 498, 109 S.Ct. 706. Because the operational needs justification has no such built-in limitation, it could be used to justify race-conscious decision making indefinitely, which has in the past been the reason why other proffered interests have been rejected by the Supreme Court. See Wygant, 476 U.S. at 275-76, 106 S.Ct. 1842 (rejecting the role model theory and societal discrimination as compelling interests for this reason). For these reasons, the Court rejects the City’s “operational needs” defense as a compelling justification for its admittedly race-conscious action. b. Remedying Past Discrimination The second interest proffered by the City and MAMLEO as a justification for the promotion decisions at issue is an interest in remedying current vestiges of past discrimination by the Department against black applicants and officers. City’s Mem. at 14-17; MAMLEO’s Mem. at 7-16. Well understanding that such an interest has been recognized by the Supreme Court as compelling under certain circumstances, e.g., Shaw v. Hunt, 517 U.S. at 909, 116 S.Ct. 1894; Wygant, 476 U.S. at 277, 106 S.Ct. 1842, the City and MAMLEO amass evidence, all of it uncontested by Plaintiffs, to show that remaining vestiges of prior discrimination perpetrated by the Department against blacks justify the limited race-conscious action taken by the Department in this case. After setting out the contours of remedying past discrimination as a compelling interest, the Court considers the undisputed evidence. In order for a government interest in remedying past discrimination to rise to the level of a compelling justification for race-conscious action, two conditions must be satisfied: “First, ... States ... must identify that [past] discrimination ... with some specificity before they may use race-conscious relief.... Second, the institution that makes the racial distinction must have had a strong basis in evidence to conclude that remedial action was necessary, before it embarks on an affirmative-action program.” Shaw v. Hunt, 517 U.S. at 909, 116 S.Ct. 1894 (citations and internal quotation marks omitted). With respect to the first condition, the Court is satisfied that the City and MAMLEO have identified the past discrimination to be remedied with the appropriate degree of specificity. They identify the relevant past discrimination as that committed by the Boston Police Department, rather than, for example, discrimination in Boston generally or in police departments nationally, which would not satisfy the City’s burden of showing that it had a “strong basis in evidence” for taking the action it did. As to the second condition, the Court is satisfied preliminarily that the City concluded race-based action was necessary before it made the promotion decision. The Plaintiffs argue that the City never considered this rationale at the time of the decision, and should thus be barred from submitting this rationale now. Kg., Pis.’ Opp’n to City’s Mem at 6; Pis.’ Mem. at 9 [Docket No. 124]. For the reasons set out in the Court’s discussion of the City’s operational needs argument, see supra pp. 32-34, the Court holds that the Department believed the challenged promotions were necessary to remedy past discrimination before it made the decisions. Even if the Court is wrong as matter of undisputed fact, however, as matter of law the City’s interest in complying with EEOC guidelines and state and federal discrimination law, which it clearly articulated at the time it made the promotion decisions, Am. Compl. Ex. B, permissibly implicates the City’s interest in remedying past discrimination. In Boston Police Superior Officers Federation v. City of Boston, 147 F.3d 13 (1st Cir.1998), the First Circuit rejected an argument identical to the one made here by the Plaintiffs. The court in Superior Officers dubbed “untenable” plaintiffs’ argument that, because Commissioner Evans justified race-conscious action as necessary to comply with a consent decree then thought to be in force, he was not also acting to remedy past discrimination within the Department. 147 F.3d at 23. The First Circuit stated that “[compliance with the consent decree] so much implicates [remedying past discrimination] that Commissioner Evans, who stated in his affidavit that he was concerned with avoiding adverse impact on minority candidates, was undoubtedly pursuing both goals at once.” Id. The important question here is whether the Department had a “strong basis in evidence” for its belief that race-conscious action was necessary. Shaw v. Hunt, 517 U.S. at 909, 116 S.Ct. 1894 (quoting Wygant, 476 U.S. at 277, 106 S.Ct. 1842). Such a strong basis in evidence may be demonstrated by “either ‘a contemporaneous or antecedent finding of past discrimination by a court or other competent body,’ or evidence ‘approaching a prima facie case of a constitutional or statutory violation.’” Superior Officers, 147 F.3d at 20 (quoting Wygant, 476 U.S. at 289, 106 S.Ct. 1842, and Croson, 488 U.S. at 500, 109 S.Ct. 706). The City and MAMLEO rely on a combination of both, and submit that judicial determinations of discrimination by the Department in hiring and promoting blacks, combined with the adverse impact of the 1996 exam, establish the requisite strong basis in evidence to take race-based action to remedy such discrimination. Before delving into the evidence submitted by the City and MAMLEO on this point, the Court resolves one more legal dispute. The Plaintiffs assert repeatedly that the City may not rely on “after-acquired” evidence to demonstrate the existence of past discrimination or adverse impact. E.g., Pis.’ Opp’n to MAMLEO’s Mem. at 5 [Docket No. 113]; Pis.’ Mem. at 4-5. To say that the particular interest articulated by the government must have been actually considered at the time the government made its decision, see supra pp. 31-32, is not to say that the government must have made findings that it actually discriminated prior to its decision to engage in race-conscious action. The former is a principle recognized by the Supreme Court; the latter is a principle expressly rejected by the Supreme Court. In Justice O’Connor’s concurring opinion in Wygant, for example, she endorsed the holding of a plurality of the Court that “a contemporaneous or antecedent finding of past discrimination by a court or other competent body is not a constitutional prerequisite to a public employer’s voluntary agreement to an affirmative action plan.” 476 U.S. at 289, 106 S.Ct. 1842 (O’Connor, J., concurring). The rationale for this principle is simple: if the government was required to develop statistical or other detailed evidence that it engaged in discrimination against blacks, for example, before it engaged in affirmative action designed to enhance opportunities previously denied to blacks, there would be no incentive for the government to take affirmative action, because to do so would require the government to expose itself to liability to the very individuals it is trying to help. Id. at 290, 106 S.Ct. 1842. This principle recognizes the delicate position of public employers, who are “trapped between the competing hazards of liability to minorities if affirmative action is not taken to remedy appa