Full opinion text
MEMORANDUM OPINION KEITH, Circuit Judge, Sitting by Designation. INDEX Introduction I. Procedural History A. Statement of the Case B. Summary of the Legal Claims. II. The History of Past Discrimination in the Detroit Police Department A. Hiring Practices 1. 1943 — The First Detroit Race Riot 2. Employment Practices 1944-53 3. Employment Practices 1954-60 4. Employment Practices 1960 — 67 5. The Department’s Relations with the Black Community 6. The 1967 Riot 7. The Detroit Police Department 1967-68 8. 1967-1974 Employment Practices of the Detroit Police Department (a) 1967 — 1971 Employment Practices (b) 1971-1974 Employment Practices B. Promotional Practices 1. The Racial Make-up of the Department’s Supervisory Ranks 1967-1974 2. Promotional Lines of Progression 3. The Promotional Process (a) Minimum Eligibility Requirements to Sit for the Examination (b) The Components of the Promotional Model (1) Service Ratings (2) Promotional Ratings (3) Seniority (4) The Written Promotional Examination (5) Veterans Preference and College Credits (c) Additional Eligibility Requirements for Promotion (d) The Mechanics of the Promotional System 4. Discrimination within the Promotional Model III. Defendant’s Past Discrimination Model — An Analysis A. Relevant Labor Market B. Defendant’s Expert’s Analysis IV. 1974 — The Adoption of Affirmative Action and Subsequent Occurrences A. The Board of Police Commissioners and the Adoption of Affirmative Action B. The Promotional Model 1974— Present; An Overview 1. Immediate Background 2. Efforts to Improve the Promotional Model (a) Oral Boards (b) The Written Examination (c) Eligibility for Promotion V. The Matter of Relative Qualifications A. The Written Exam B. Service Ratings C. Confirmation Service Ratings and Officer Candidate School Scores D. Summary VI. The Legal Standard for Voluntary Affirmative Action A. The Legal Claims B. The Title VII and § 1981 Claim 1. The Weber Decision 2. Weber and the Detroit Affirmative Action Plan 3. The City’s Past Violation of Title VII C. The Constitutional Claim 1. The Board of Police Commissioners’ Findings of Past Discrimination 2. Intentional Past Discrimination 3. Summary 4. Was the City’s Affirmative Action Plan Reasonable? D. State Law Claims VII. The City’s Operational Needs Defense A. The Black Community and Racial Discrimination by the Police Department B. Prevailing Attitudes in the Police Department VIII. Conclusion INTRODUCTION This case presents a host of issues regarding affirmative action and the broader question of race relations in the City of Detroit and throughout the United States. It brings into focus the tension which exists when the expectations of whites are affected by programs designed to aid minorities. The controversy in this case can be simply summarized. In 1974, the City of Detroit commenced an affirmative action program regarding promotions in the Detroit Police Department. This program resulted in the preferential promotion of black officers. White officers considered themselves aggrieved by the program and brought this lawsuit. There exist three basic job levels in the Detroit Police Department: patrolman, sergeant and lieutenant. The particular controversy in this case concerns the promotion of officers from the rank of sergeant to the rank of lieutenant. The ordinary procedure which the Detroit Police Department uses to make promotions can be simply summarized. The candidate takes a written examination and, upon attaining a minimum score of 70, the officer’s name is placed on a promotion eligibility list. The officer’s rank on such a list is determined by a number of factors, including exam score, length of service in Department, ratings by superior officers, and level of college education. Although the relative weights of these factors have been shifted over the years, the general procedure has remained that after each factor has been assessed, an overall rating is given to each officer desiring promotion. The candidates for promotion are than ranked numerically from 1 to 500 or however many officers there are on the list. Ordinarily, the officers (in this case sergeants) are promoted to the higher rank (in this case lieutenant) strictly in rank order, depending on how many openings are available. Thus, if the Department needed 12 lieutenants, it would promote the top 12 sergeants on the list. The City’s affirmative action program added a simple wrinkle to the ordinary promotion procedure — it ensured that equal numbers of black and white officers would be promoted. Thus, instead of promoting in order of rank on the eligibility list, the City promoted the top white officers and the top black officers in equal numbers as needed to fill the available openings at the lieutenant’s level. The problem cited by plaintiffs is that almost all of the black officers ranked lower on the list. By promoting these lower-ranking black officers, the City effectively by-passed an equal number of white officers who ranked higher on the list and who would otherwise have been promoted. Thus, if the City needed 22 lieutenants, instead of taking the top 22 sergeants on the promotion list, it would take the top 11 white sergeants and the top 11 black sergeants. White sergeants with numbers 12-22 on the promotion list would be passed over for promotion, assuming that there were no black sergeants in this range. The by-passed white sergeants were understandably upset. They had followed the procedures for promotion set out by the City and had ranked near the top of the promotions list. They considered it grossly unfair for the City to by-pass them. In addition, the black officers who were promoted ahead of the by-passed white officers had ranked lower on the list, and thus, in the minds of the white officers, were less qualified. Feeling that they had been illegally discriminated against, the white sergeants brought this lawsuit. Although the legal issues are varied and complex, the plaintiffs’ claim can be simply and accurately summarized — it should be illegal for the City to promote blacks over whites solely because of race, especially when the whites ranked higher on the list and were thus, presumably, better qualified. Plaintiffs position has facial appeal. On the face of it, racial discrimination against whites should not be tolerated by the law any more than racial discrimination against blacks. Why should lower-ranking blacks get promotions over higher-ranking whites? The City’s response to these concerns raised by plaintiffs also has much appeal: 1) The City has been guilty of extensive past discrimination against blacks; 2) black officers at all ranks are desperately needed in a predominantly black city because of the need for citizen-police cooperation and related reasons; and 3) the black officers promoted were as qualified as the white officers passed over by them because the ranking on the promotional list was essentially meaningless. These are the issues presented in- this lengthy litigation. They are not easy to resolve and there is no result which can satisfy both sides. The parties and the people of the City deserve a full explanation of this Court’s views. Because of the significant and difficult nature of this case, this Court shall try to write as clear and concise an opinion as possible; understandable by lawyer and layman alike. The Court sets forth hereinbelow its findings of fact and conclusions of law, in accordance with Rule 52(a) of the Federal Rules of Civil Procedure. I. PROCEDURAL HISTORY A. Statement of the Case This consolidated action challenges the method of promotions of black male police officers from the rank of sergeant to the rank of lieutenant within the Detroit Police Department (Department) made pursuant to a voluntary affirmative action program which the governing body of the Department, the Board of Police Commissioners, promulgated in July, 1974. Named as defendants in this lawsuit are the City of Detroit; Coleman A. Young, Mayor of the City of Detroit; the Detroit Board of Police Commissioners and its individual members; and Philip G. Tannian, Chief of Police (City defendants). Case Number 5-71937 was commenced in this Court on October 7, 1975, by Kenrteth A. Baker and six other individuals (the Baker plaintiffs). Each claims that he was denied promotion from the rank of sergeant to lieutenant off of the 1973 eligibility register solely on the basis of his race and sex, in violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, Title VII of the Civil Rights Act of 1964, as amended March 24, 1972, 42 U.S.C. § 2000e et seq. and § 706(f)(1) and (3), 42 U.S.C. §§ 1981, 1983, and 1985(3), the Constitution of the United States and the Constitution and laws of the State of Michigan, and the Charter of the City of Detroit. Case Number 5-72264 was brought as a class action in Wayne County Circuit Court on November 3,1975. The named plaintiffs are Hanson Bratton, four other individual white male sergeants, and the Detroit Lieutenants and Sergeants Association (the Bratton plaintiffs), who challenged the same affirmative action program under attack by the Baker plaintiffs. However these claims are limited to promotions that were made off of the 1974 and subsequent eligibility registers. Both sets of plaintiffs sought promotion, back pay, actual and punitive damages and an injunction against continued operation of the affirmative action program. On motion of the City defendants, the Bratton action was removed to the United States District Court for the Eastern District of Michigan on November 26, 1975. While still in state court, the Bratton plaintiffs sought and obtained a temporary restraining order and an order to show cause why a preliminary injunction should not be issued enjoining the promotion of black male officers from the rank of sergeant to lieutenant pursuant to the affirmative action program. City defendants moved to dissolve the temporary restraining order issued by the state court. After a hearing, this court dissolved the temporary restraining order on November 26, 1975. The Baker plaintiffs petitioned for a preliminary injunction restraining the Department from making promotions to the rank of lieutenant pursuant to the affirmative action program. The preliminary injunction motion was denied after a hearing by this Court on October 24, 1975. The Bratton plaintiffs moved for leave to amend their original complaint on February 7, 1977. This Court granted the motion by order dated March 9,1977. The defendants filed their answer to the amended complaint and affirmative defenses on May 24, 1977. On August 26, 1976, this Court certified the Bratton action as a class action pursuant to Rule 23(b)(2) of Federal Rules of Civil Procedure. On September 19, 1977, the Court amended its class action order and defined the class as: “All past, present and future qualified white male police sergeants who since November 1974 have been or will be denied because of their race to be timely promoted to the rank of lieutenant.” Plaintiffs moved on April 7, 1978, to recuse this Court. After referring the motion to the Magistrate and a hearing, this Court denied the motion by memorandum opinion and order dated June 29, 1978. On May 18, 1978, the Guardians of Michigan, a voluntary association of black police officers, and seven named individuals, moved to intervene as parties defendant in these actions (Intervenors). By order dated July 6, 1978, the court granted intervention allowing the Guardians, et al., to proceed as party defendants. By order dated May 4, 1978, this Court granted the City defendants’ motion to consolidate the Baker and Bratton actions for remaining pre-trial matters and for trial. In June, 1968, the Bratton and Baker plaintiffs filed a joint motion for summary judgment on the issue of liability. After considering the recommendation of the Magistrate and hearing further oral arguments by the parties, this Court by order dated August 1, 1978, denied the motion. In June, 1978, plaintiffs moved for trial by jury at the liability stage of the proceedings. After considering the recommendations of the Magistrate, and the pleadings of the parties, the Court by opinion and order dated August 1, 1978, rejected plaintiffs’ demand for a jury trial. Plaintiffs sought a writ of mandamus on the jury issue which the Court of Appeals for the Sixth Circuit denied. Prior to trial, plaintiffs moved to compel the City to respond to certain discovery requests. After hearing oral argument, the Court granted plaintiffs’ motion and requested that the Baker plaintiffs submit an order embodying the ruling of the Court from the bench. Thereafter, the parties entered into an agreement outlining the further discovery obligations of the City defendants as well as those of the intervening defendants. By this stipulation the parties resolved all outstanding discovery matters and during the trial the Court was advised that all outstanding discovery requests had been satisfied. By stipulation all parties agreed to bifurcate the trial proceedings into two stages, one to determine liability and another to assess damages. On August 19, 1978, the City defendants filed a motion for partial summary judgment, seeking dismissal of all monetary claims other than back pay. This Court granted the motion by memorandum opinion and order dated September 25, 1979. On August 22, 1978, this Court commenced trial of the liability phase of this litigation. The trial spanned five months, including 55 trial days, and was completed on January 18, 1979. Over 45 witnesses appeared at trial and the parties stipulated to the introduction of prior sworn testimony. The total trial transcript was over 6300. pages. In addition, over 230 exhibits were introduced into evidence. All parties were ordered to submit post-trial briefs simultaneously and all sides were afforded an opportunity to submit reply briefs. On April 30, 1979, the Court heard closing arguments. B. Summary of the Legal Claims Plaintiffs allege that the City’s affirmative action plan discriminates against them because of their race (white) and that such discrimination violates both federal and state law. Plaintiffs claim that there should be no difference between discrimination against whites and discrimination against blacks, regardless of good intentions or the desire to remedy possible past discrimination. Defendants deny that their actions violate any provisions of state or federal law, or of the constitutions of the State of Michigan or the United States, and contend that the law permits the Department’s voluntary affirmative action efforts. They assert that the Department and its governing body, the Board of Police Commissioners (Board) had an affirmative duty, under state and federal guidelines and law, and the United States Constitution, to remedy the present effects of the Department’s past employment discrimination, and to assure that the Department police the City of Detroit effectively and in a non-discriminatory fashion. As noted in this Court’s Opinion on the summary judgment issue, after extensive public hearings and presentations of fact and law, the Board of Police Commissioners by resolution in July, 1974, found it necessary because of past and present discrimination in the hiring and promotional practices of the Department, and the operational needs of the Department, to institute an affirmative action promotional scheme. At intervals thereafter, the Board reviewed the continuing need for the program. Defendants contend that the facts overwhelmingly support the defendants’ determinations (1) that the Department had unlawfully discriminated against blacks in hiring and promotions; (2) that the Department’s discrimination had damaging effects against not only black applicants and police officers but also against black residents of Detroit and on the Department’s ability to police the City effectively; and (3) that the affirmative action promotional scheme was the only effective remedy to eradicate prior employment discrimination, to improve the Department’s operational efficiency, and to repair police-citizen relations. Plaintiffs argue that the City’s defenses should be irrelevant as a matter of law and cannot justify the effect of the affirmative action program on them. Further, the plaintiffs argue that any past discrimination against black officers merely resulted from the use of facially neutral hiring criteria, such as I.Q. tests, which blacks failed much more than often than whites. Plaintiffs concede that use of such discriminatory tests which are not demonstrably job-related violates Title VII of the 1964 Civil Rights Act, as interpreted by the Supreme Court in Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). However, Title VII did not apply to municipal employers such as the defendant until March of 1972. Plaintiffs thus contend that although past Department practices may have hurt blacks’ chances for hiring or promotion, the Department did not violate the law in the past because it did not engage in past intentional discrimination which would amount to a Constitutional violation against black officers under Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976). Finally, plaintiffs argue that even if affirmative action is in order, they should not have to pay the price for it. That is, the City should at least be ordered to pay them back wages and other compensation they would otherwise have received. The case is now ready for decision. For the reasons which follow, this Court upholds the City’s affirmative action plan as permissible under law. II. THE HISTORY OF PAST DISCRIMINATION IN THE DETROIT POLICE DEPARTMENT A. Hiring Practices The Detroit Police Department’s Affirmative Action Program does not exist in a vacuum, nor did it pop up overnight just because the City thought that it would be a good thing to do. As will be discussed below, the program arose principally because the City thought it necessary to offset years of discrimination. Put another way, the City reasoned that absent discrimination, many more black officers would have risen to the rank of lieutenant. At trial, the City introduced extensive evidence regarding past discrimination against blacks in the police department — in hiring, in the ranks, and in promotions. It is a sad and sorry record and it is largely undisputed. 1. 1943 — The First Detroit Race Riot In June of 1943 a race riot erupted in Detroit. The riot unquestionably had many causes, e. g. tension between Southern workers who were working in Detroit factories during the war and the black community. While it cannot be said that the Detroit Police Department caused the riot, the Department’s performance during the riot was disturbing. The Department was virtually all white and the few black members of the Department were strictly segregated. The Department had over three thousand officers. Yet, there were only 43 black officers in the Department and, as will be discussed below, they were treated as second-class officers. During the riot both black and white citizens were openly engaged in unlawful, riotous conduct, yet enforcement of the law was not equal. A comprehensive report describing and analyzing the riot was prepared in 1943 by Walter White and Thurgood Marshall of the National Association for the Advancement of Colored People (NAACP). Mr. Marshall, now a Justice on the United States Supreme Court, described past discriminatory police practices in Detroit and went on to discuss the Department’s role in the riot: “In the June riots of this year, the Detroit police ran true to form. The trouble reached riot proportions because the police of Detroit once again enforced the law under an unequal hand. They used “persuasion” rather than firm action with white rioters while against Negroes they used the ultimate in force; night sticks, revolvers, riot guns, sub-machine guns, and deer guns. As a result, 25 of the 34 persons killed were Negroes. Of the 25 Negroes killed, 17 were killed by police. The excuses of the Police Department for the disproportionate number of Negroes killed is that the majority of them were killed while committing felonies; namely, the looting of stores on Hastings Street. On the other hand, the crimes of arson and felonious assault are also felonies. It is true that some Negroes were looting stores on Hastings Street and were shot while committing these crimes. It is equally true that white persons were turning over and burning automobiles on Woodward Avenue. This is Arson. Others were beating Negroes with iron pipes, clubs, and rocks. This is felonious assault. Several Negroes were stabbed. This is assault with intent to murder. All of these crimes are matters of record; many were committed in the presence of police officers, several on the pavement around the City Hall. Yet, the record remains, Negroes killed by police —17; white persons killed by police— none. Eighty-five percent of persons arrested were Negroes. Evidence of tension in Detroit has been apparent for months. The Detroit Free Press sent a reporter to the police department. When Commissioner Witherspoon was asked how he was handling the situation, he told the reporter: ‘We have given orders to handle it with kid gloves. The policemen have taken insults to keep trouble from breaking out. I doubt if you or I could have put up with it.’ This weak-kneed policy of the police commissioner coupled with the anti-Negro attitude of many members of the force helped to make a riot inevitable.” Thurgood Marshall, “Activities of Police During the Riots June 21 and 22, 1943” in White & Marshall, What Caused the Detroit Riot? An Analysis 29-30 (NAACP 1943) (Exhibit 217). See also R. Shogan & T. Craig, The Detroit Race Riot, A Study in Violence (1964). In this same report, Mr. White complained of the “inadequate number” of black officers and specifically recommended “that the number of Negro officers be increased from 43 to 350 [and] that there be immediate promotions of Negro officers in uniform to positions of responsibility.” White & Marshall, supra at 17. The City did not follow this recommendation. 2. Employment Practices 1944r-53 Between 1944 and 1953, 3005 whites and 117 blacks (3.7%) were appointed to the Department. By way of illustration, annual black hires ranged from 4 to 28 during those years, while annual white hires ranged from 135 to 560. These hiring figures resulted in a virtually all-white Department. The Task Force on the Police Report of the President’s Commission on Law Enforcement and Administration of Justice (1967) gave the stark figures for 1953 : 3,565 white patrolmen, 96 black patrolmen. The supervisory ranks were virtually barren of blacks: there were 3 black sergeants out of 347 and one black lieutenant out of 168. Overall, the department was less than 2.5% black. In contrast, the City, according to the 1950 census, was 16% non-white. Even including the metropolitan area, the non-white population was 12%. The few blacks who were hired were strictly segregated. Most blacks were on the “patrol side” as opposed to the “investigative side.” That is, most were uniform officers assigned to various precincts as opposed to being non-uniform officers assigned to various investigative bureaus. Within the precinct, blacks were permitted to patrol clearly defined areas only. Scout cars were similarly segregated. Black officers were relegated to a few designated scout cars which were for blacks only. Black officers had to walk a beat for many years until a vacancy opened up in one of the black cars. Junior white officers had an easier time obtaining scout car assignments since there were far greater numbers of white-only scout cars. The only time that whites and blacks rode together in scout cars, even on temporary assignments, was when the white officer consented. In addition, white officers were occasionally assigned to ride with blacks as a form of punishment. Assignments in the station house were generally regarded as desirable. However, blacks were relegated to menial jobs which involved little contact with the general public — jobs such as locking up prisoners and performing janitorial functions. Similar segregation took place on the “investigative side.” Black investigators were teamed only with blacks and worked almost exclusively in black areas. When they worked in a white part of town, their function was only to arrest blacks. Some investigative bureaus such as Robbery and Auto were off-limits to blacks altogether. As indicated, above, there were only a handful of black sergeants and lieutenants. However, they were not deemed good enough to supervise whites. They were, accordingly, permitted only to oversee black patrolmen. In contrast, white officers of inferior rank would occasionally supervise superior officers who were black. The pernicious effect of this segregation on blacks is vividly shown by “integration” of police raids on illegal late-night gambling and drinking establishments known as “blind pigs.” Where these establishments were black-operated, it was impossible for white undercover officers to gain admittance to them to observe the illegal activity, make buys, and preserve evidence until other officers completed the raid. Out of necessity, black officers were used for this purpose. However, present Police Chief William L. Hart’s testimony showed vividly how black officers were used only to the extent necessary. Their role in the raid ended after entry by the raiding white officers. The white officers refused to eat with the black officers and often excluded them from the normal processing of contraband. After the raid, the black officers were returned to their segregated beats. The effect of such stigmatization on black officers can only be surmised, but it was doubtless considerable. Equally important was the pernicious effect of segregation upon the public safety. So deeply ingrained was prejudice against black officers that if a black officer assigned to a patrol car was out sick, only blacks could be used as fill-ins. If no black officer was available to fill-in, the car would not go out that day. Similarly, if a “black” patrol car was out of service, the black officers who used it would be assigned to go on foot patrol. This was so even if a “white” patrol car was lying idle. In both cases, the public was deprived of the benefit of a scout car patrol. Police dispatchers were instructed never to send black cruisers into white neighborhoods. If there was a situation of great danger — a so-called “hot run,” — the nearest patrol car would normally be immediately ordered to the scene. However, if the disturbance requiring immediate attention took place in a white neighborhood, the “no blacks allowed” rule took precedence, even if a white cruiser was more distant. 3. Employment Practices 1954-60 Things remained much the way they are described above throughout the 1950’s. Between 1954 and 1960 the Department hired 1210 whites and 51 blacks. In December of 1960, the U.S. Commission on Civil Rights held hearings in Detroit. Mr. Arthur L. Johnson, then Executive Secretary of the Detroit Branch of the NAACP, presented forceful testimony regarding deliberate police brutality against the black community. Mr. G. Nelson Smith, Community Services Assistant, Detroit Urban League presented specific testimony regarding discrimination against blacks within the Department. Former black officers in the Department corroborated this testimony. The above testimony contrasted sharply with that of Chief of Police (then called Police Commissioner) Henry Hart who painted a rosy picture of the Police Department and its practices. The data presented by the Chief of Police at the 1960 hearings regarding black employment was as follows: 134 out of the 4357 officers on the force were black— slightly over 3%. There were six black sergeants and no black lieutenants. In contrast to these figures, the Wayne County Sheriff’s Department was nearly 30% black. This difference was unexplained, and is difficult to justify, especially given that recruits for both the Detroit Police Department and the Wayne County Sheriff’s Department receive similar training. As of December 1958, a Detroit Urban League survey of the Department (summarized in the hearings) showed that little had changed since the 1943 Riot. The Department was 3% black, black officers were segregated in scout cars, in beats and in partner assignments. Of the 13 precincts, 5 had no blacks assigned to them while 85% of all black officers were assigned to 5 other precincts. By the time of the Civil Rights Commission Hearings in 1960, however, the Department was slowly beginning to desegregate. The first steps were taken in March, 1959 when the Department initiated a program to desegregate scout cars. This program was strongly opposed by white officers. In protest, the officers staged a so-called “blue flue” protest action by going on a ticket strike. The day after the squad car integration policy was announced, the writing of traffic summonses dropped to 10% of the number normally issued. Given the opposition by white officers, desegregation proceeded slowly. By December 1960, Chief of Police Hart was able to testify before the Commission that 24 of the Department’s 118 scout car crews were integrated. In addition, some integration of precincts had been achieved. 4. Employment Practices 1960 — 67 The desegregation of the Department continued in the 1960’s, but at a snail’s pace. Discriminatory scout car assignments continued to be made; in some precincts scout cars remained segregated until the mid-1960’s. Integration of investigative bureaus and units was not achieved until the mid-1960’s. Similarly, it was the mid-1960’s before blacks on the patrol side were first allowed to supervise whites, even whites of inferior ranks. George Edwards, now Chief Judge of the United States Court of Appeals for the Sixth Circuit, stepped down from the Michigan Supreme Court to become Detroit Police Commissioner in 1962. As Commissioner in 1962 and 1963, Judge Edwards tried to implement changes. He issued orders to fully integrate the Department. Subsequent Commissioners tried to do the same thing, with “less than spectacular success.” The principal obstacle throughout these efforts was the stubborn resistance of white police officers. As late as 1969 massive resistance to integration was still taking place. The testimony of Deputy Chief James Bannon was particularly vivid: In 1969 he was made commanding officer of the Narcotics Bureau. He found that he needed black officers to help investigate the growing abuse of drugs in the black community. He asked for and received permission to transfer into the Narcotics Division six black officers. Upon their arrival, the black officers met with severe hostility and a campaign of harassment. In addition, they were subjected to great danger because information about their assignments was leaked to people in the drug underworld. Not wishing to be “martyrs,” the men requested transfer out of the division. Bannon persuaded them to stay on, but was unable to fully resolve the conflict until he restructured the Narcotics Bureau and facilitated some transfers and retirements. Just as there was some progress in desegregating the Department in the 1960’s, so there was some progress in hiring more black officers. Between 1961 and 1966, the Department hired 1,080 white and 86 black (7.4%) police officers. In 1967, an additional 252 white and 71 black (22%) police officers were hired. Progress was slow, however. The Department was no more than 6% black in 1967. The number of blacks holding command ranks was truly miniscule. In 1967, there were 339 white and nine (9) black sergeants (2.5%), 156 white and two (2) black lieutenants (1.3%) and 62 whites and (1) one black above the rank of lieutenant. 5. The Department’s Relations with the Black Community This Court has previously noted the harsh, stigmatizing segregation which the Department imposed upon black police officers up to the mid-1960’s. It is not surprising that this same department would treat members of the black community with contempt similar to or worse than that displayed toward its own black officers. Then-NAACP General Counsel Thurgood Marshall in an excerpt quoted earlier in this opinion, supra, commented on unequal police practices during the 1943 riot. The evidence reveals that since at least that time, the relationship between the Department and the black community was one of mutual hatred and suspicion. The testimony of Arthur L. Johnson of the NAACP before the Civil Rights Commission in 1960 summed up the situation quite well: Relations between the Negro community and the police in Detroit are not good. They are characterized by persistent conflict and tension. Negroes do not generally regard the police as being friendly and respectful. They see the police as being antagonistic and often willing instrumentalities in the racial segregation aims of the dominant white community. The attitude of police toward Negroes in Detroit was demonstrated in the sensational police-ticketing strike in March 1959. This act of rebellion was brought on as a part of police opposition to limited, initial plans of integrating scout cars in Detroit. The demonstrations were so widespread that for a brief period a virtual crisis was created in the police department. Employment discrimination, which figured in the ticketing strike, reflects basic attitudes and administration policy in the police department. The weak position of Negro personnel in the department is ringing proof of the scope and gravity of this practice. At absolutely no point in their experience do Negroes in Detroit see the law enforcement agency as being truly color blind . If a basic police policy does not exist supporting containment, intimidation and general mistreatment of Negroes, there exist, with the same effect, very strong anti-Negro, anti-integration, and anti-civil rights practices and attitudes which dominate the Detroit Police Department’s image in the Negro community. It can be said, quite possibly without contradiction, that no responsible Negro citizen in Detroit would have difficulty relating at least one personal encounter or observation which would support the basic charges being made here. Underlying the eruption of police brutality and the tensions between police and the Negro community are several specific and related offenses. Negroes complain of illegal and unreasonable arrests, of indiscriminate and open searching of their person on the public streets, of disrespectful and profane language, of derogatory references to their race and col- or, of interference with personal interracial associations, and of violent, intimidating police reactions to their protests against improper treatment. Negroes in all classes make these complaints, for the offenses are directed against Negroes as a group. The police brutality problem is a direct result of the anti-Negro attitudes and practices and their related conflicts and tensions which permeate relations between the police and the Negro community- Willis Ward, an assistant U.S. Attorney in Detroit, who is now a probate judge in Detroit, shared Mr. Johnson’s concerns. He and concerned white citizens got together with the leaders of the black community and rapidly reached the conclusion that things were not right. He repeated these conclusions in testimony before the Civil Rights Commission: 1) The police department seems to be working under a program of containment of the Negro citizen by brute force, and the discouragement of lawful and moral communications and commingling of the white and colored citizens by hazing such groups; 2) the police department considers the Negro citizen as a second class in status; 3) only a representative and token number of Negroes should be taken into the police department; and 4) the Negro police officer is tolerated by his fellow officers, but not accepted as an officer of the law. Mr. Ward spoke those words in 1960. Yet relations between the black community and the Police Department remained poor for many years thereafter. Testimony at trial revealed that there was basis for the black community’s charges of police abuse. A number of black officers, for instance, testified at trial about various incidents where they observed police misconduct and abuse towards blacks. Each indicated that the abusive practice in question was racially motivated and that they did not report the incident at the time for fear of reprisal by white officers. One black officer violated the code of silence and paid the price. He observed a white officer brutally beating a black youth in a garage at the second precinct in September of 1965. Pursuant to the code, he covered up the incident in an initial report. Upon being pressed by the Citizens Complaint Bureau, however, the officer gave a truthful and detailed account of what had happened. Word that he had “squealed” leaked out. Retribution from white officers was swift. He was verbally abused and his car was vandalized. In addition, he alone among the officers involved was disciplined by the department for submitting the (initially) false report about the incident. The controversy was finally settled by the Michigan Civil Rights Commission, which found a violation of the officer’s civil rights: “The individual acts of violation and harassment by persons believed by [the complainant] to have been fellow officers . . . appear to be clear and obvious acts of racial antagonism, stemming from his violation of the ‘Blue Curtain’ practice.” 6. The 1967 Riot Antagonism between the Police Department and the black community was a root cause of the Detroit riot in 1967. The 1968 Report of the National Advisory Commission on Civil Disorders noted the “long history of conflict between the police department and citizens” in Detroit. Commission surveys found that police practices were a significant grievance in all riot-torn cities. The Commission approvingly cited a survey by the Detroit Urban League which found that police brutality headed the list of grievances which the black respondents thought had led to the riot. The Commission’s overall conclusion that “deep hostility between police and ghetto communities [was] a primary cause of the disorders” is certainly correct regarding Detroit. This court has previously commented on police practices and the 1943 riot. In 1961 Judge Edwards, then a Justice of the Michigan Supreme Court, considered Detroit as “the leading candidate in the United States for a race riot.” In 1965, in a prophetic article in the Michigan Law Review, Judge Edwards noted the continued problem of police-black community relations, which he regarded as “the major problem in law enforcement in this decade” and as “the major cause of all recent race riots.” In the summer of 1966 there occurred a relatively minor disorder in the black community called the “Kercheval Incident.” A crowd gathered at the scene of a police stop. Tempers flared and a white officer struck a black citizen in the eye, detaching it from its socket. Rocks and bricks began to fly. Supporting police units were summoned and the scene soon returned to normal. This incident, however, was the harbinger of things to come. The July 1967 Detroit riot was, unsurprisingly, triggered by an encounter between black citizens and the police. The 1968 National Advisory Commission on Civil Disorders outlined what happened. The police raided a “blind pig” in a black neighborhood in which a celebration was being held to welcome home black servicemen returning from Vietnam. There were many more persons at the “blind pig” than the police had expected, and an hour went by before everyone arrested could be moved to the police station. In the meanwhile, a large crowd gathered which got too big for the police to handle. The crowd went on a rampage. For five days thereafter, Detroit experienced major racial violence. Forty-three persons died, 7200 persons were arrested, 683 structures were destroyed by fire. The police proved inadequate to deal with the violence and the city was occupied by 5000 Michigan National Guardsmen and 2700 regular army paratroopers. The horror and intensity of the violence is fully described in the “Riot” Commission’s report; there is no need to repeat the details here. 7. The Detroit Police Department 1967-68 A shaken city slowly recuperated from the riot. At the time of the riot, the city was almost 40% black. The Police Department was no more than 6% black and its command structure was virtually all white. The City was hard hit by the realization that a police department whose racial composition was so grossly disproportionate to the population it served was undesirable and unacceptable to the black community. Executive Deputy Chief of Police Bannon, who had been in the Department since 1949, testified at trial that the riot convinced people in and out of the Department, many for the first time, that the Police Department could not do its job effectively with so few black officers. Detroit’s Mayor at the time, Jerome P. Cavanaugh, reached the same conclusion: “It became obvious to me and this entire community, both black and white, that this proportion of Negro policemen (6%) was clearly unacceptable.” The need for more black officers at all levels of police departments in general was a key finding of both the National Advisory Commission on Civil Disorders and the 1967 President’s Crime Commission Report. Why was the Police Department so overwhelmingly white? A key reason is that the hiring process had been riddled with discrimination for years. The application and hiring process for a job as police officer in 1968 consisted of five stages. (The stages in the process have remained basically the same since then and were basically the same before then). An applicant first filled out a preliminary application card and was screened as to the Department’s nine preliminary qualifications, such as height and weight limits, education, and vision requirements. The second step was a written examination. If the candidate passed he or she was scheduled for a physical examination. Following successful completion of the physical examination, a background investigation was initiated. The final step was for the candidate to appear before three members of the Department for an interview. This Oral Board makes the final decision whether, the applicant would be offered employment as a police officer. Discrimination in the hiring process existed at all levels. First, the Department used a written exam of several hours duration which blacks failed at a much higher rate than whites. In 1967, for example the black failure rate was twice the white failure rate. The reason for the disparity in passing rates for black and white officers is that the exam was an I.Q. test which was not job-related. In other words, it did not measure whether a candidate would make a good police officer. It did, however, disqualify large numbers of black applicants. The Department was well aware of this fact but continued to use this test for years. Second, the hiring system facilitated subjective decisionmaking which, in practice, operated to the detriment of black applicants. This was true in two respects: oral boards used to question and screen applicants, and background investigations of applicants. Third, blacks were disproportionately affected by preliminary screening. Preliminary screening took place when an applicant for employment first “came through the door.” If the applicant did not meet certain strict requirements,— age, education, height, weight, vision and marital status, then he would be turned down immediately. However, an investigation by the Commission on Community Relations in Detroit found that in 1959, 178 whites but only 36 blacks were permitted to progress past preliminary screening even though they failed one or more preliminary screening requirements. The Commission found that white applicants were favored. One other factor bears examination at this point — the effect of the Police Department’s reputation. The testimony in this case overwhelmingly shows that the Police Department had a horrible reputation in the black community in 1967-68 and for years before that. The evidence shows that this reputation, built on years of abuse and hostility, operated to deter blacks from applying to the Police Department for employment. At the same time, the statistical evidence tended to show that blacks applied to the Police Department in numbers more than reflecting their share of the populátion. The Commission on Community Relations found this to be true in 1959. The Detroit Special Task Force Report on Recruiting and Hiring found that in 1967, 47% of the applicants to the Department were black while only 40% of the city’s population at the time was black. Thus, despite discrimination and abuse, blacks applied to the Department in large numbers. This appears to be contradictory. An answer to this paradox is that employment with the Police Department has historically been a way in which the poor have climbed out of poverty. Blacks were foreclosed from many jobs; many of them apparently decided to apply to the Police Department despite its reputation and despite inferior working conditions for blacks within the Department. Absent discrimination, however, it is logical that many more blacks would have applied. 8. 1967-1974 Employment Practices of the Detroit Police Department (a) 1967-1971 Employment Practices The City did take some steps to increase the unconscionably small number of black officers. In 1968, Mayor Cavanaugh appointed a Special Task Force on Recruiting and Hiring to review Departmental practices and recommend changes in them. The Mayor’s Special Task Force recognized the problems with minority recruitment and hiring and recommended a number of changes. Recommendations to improve the Department’s recruitment of minorities also came from a committee of industrial psychologists known as the Vickery Committee. A number of these Commissions’ recommendations were adopted. Department standards regarding rejection for Traffic Records, Police Records, Maritál Status and Credit were liberalized. Age, education, height and vision standards were loosened. Some efforts were made to increase the number of black officers involved in the recruitment and hiring process. The most important change which was made, however, was in the written exam. As indicated above, the Department prior to 1968 used multi-hour I.Q. tests which were widely known to be non-job-related and which blacks failed far more often than whites. In 1968, on recommendation of the above Commissions, the Department replaced this exam with a 12-minute Wonderlic exam which purported to measure problem-solving ability. The parties have entered into a significant dispute regarding the Department’s 1967/68-1974 minority recruitment efforts. The plaintiffs argue that beginning in 1969, the Department instituted aggressive efforts to recruit and hire large numbers of black officers. They argue from this that any pre-1968 discrimination was fully remedied and there was thus no need for the institution of the City’s affirmative action program in July of 1974. The plaintiffs overstate both the extent and the effect of the City’s minority hiring efforts from 1968-1974. The plaintiffs rely heavily on the Detroit Police Department Equal Employment Opportunity Program Report (EEOP),' written in November of 1975, which paints a glowing picture of the Department’s efforts to recruit and hire minority officers. The EEOP Report, however, does not refer to the dates when changes in hiring practices took place. Careful examination of the facts reveals that very few changes were made between 1968 and 1971 and that changes begun in 1971 did not begin to show results until 1973-1974. This was the testimony both of Thomas G. Ferrebee who was made Commander of the Recruiting Division in 1971, and Lieutenant Clarence Broadnax, who was assigned to the Division in 1968 as a police officer and has worked there ever since. The testimony of Commander Ferrebee and Lieutenant Broadmax shows that in 1971 things were much as they always had been at the Detroit Police Department. White applicants were favored in many preliminary screening requirements. It was common for Recruiting Division administrators to approve white applicants who did not meet arrest and military qualifications as well as other preliminary qualifications. This seldom occurred in the case of black applicants, for there were no blacks in the command structure to whom a black applicant could turn to overrule a Recruiting Division rejection. Access to the preliminary application card file was unrestricted and cards were altered, or removed and not returned. Background investigators continued to act without any accountability and delivered subjective opinions which operated to the detriment of black applicants. The Oral Boards made similar subjective anti-black judgments. Even the medical exams operated to exclude blacks. A 1971 Report of the Michigan Civil Rights Commission found that Department physicians and psychiatrists frequently rejected black applicants on the basis of information which was disclosed not through the medical examinations which they conducted, but in background investigations. Again, the problem was the same — the impact of uncontrolled discretionary decision-making by whites, in this case, white physicians. Perhaps the most discriminatory part of the hiring process was the written examination. As indicated above, until 1968, the Department used a 2/2-3 hour I.Q. test, the Otis test, which discriminated heavily against minorities. As an interim measure, the Department substituted a 12-minute Wonderlic test in 1968, on recommendation of the Vickery Commission. The Vickery Commission realized, however, that the Wonderlic test also discriminated against blacks. The Commission hoped that the test would be less discriminatory than the Otis test it replaced and reasoned that at least the ordeal for applicants and persons correcting the test would be less. However, as Commander Richard Caretti, presently Deputy Director of Personnel and assigned to the personnel division since 1968 testified, the Wonderlic, like the Otis, screened out minorities at “a dramatically disparate rate.” The following table shows the discriminatory effect of the written exam: Additional evidence which demonstrates the Department’s continuing discrimination against blacks from 1968-1971 is a Staff Report by the Michigan Civil Rights Commission. The Commission staff reviewed applications for patrolman from January 1, 1969, through March 31, 1970, and concluded that there was probable cause to believe that the Department “followed and continues to follow a course of action in its personnel practices leading to the unwarranted and disproportionate exclusion of large numbers of non-white persons from its employ.” Exh. 234A at 21. The Commission staff’s specific findings of discriminatory practices parallel the testimony of Commander Ferrebee and Lieutenant Broadnax and are in accord with this court’s findings. They are reproduced in the margin for the convenience of the reader. (b) 1971-1974 Employment Practices Starting in 1971, with the appointment of Commander Ferrebee to head the recruiting division, matters did improve. Commander Ferrebee increased the number of black personnel in the Recruiting Division and engaged in priority recruitment efforts to encourage qualified blacks to apply for a position as police officer. The Mayor’s 1968 Special Task Force had recognized the need for special recruitment efforts directed to the black community because of the Department’s abysmal reputation with blacks. However, from 1968 until 1971, according to Sgt. Broadnax, the Department’s minority recruiting program consisted essentially of one black lieutenant who acted as public relations man. The record demonstrates that the department did make some efforts in those years, but that they were neither extensive nor successful. Starting in 1971, the Department did begin to aggressively recruit minorities, however. Department applications data shows the effects of recruiting and how massive minority application did not take place until 1974. Under Commander Ferrebee’s direction, the Department sought minority applicants throughout the state, especially those at Colleges and Universities. The Department conducted what the EEOP Report (exh. 26a) termed “perhaps the most extensive advertising campaign designed to attract minorities that has been carried on anywhere in the country.” The techniques employed are described in the EEOP, excerpts are reproduced in the margin. Commander Ferrebee also instituted efforts to minimize the adverse impact of the hiring process on blacks. Access to the preliminary application card file was restricted to Department personnel who preliminarily interviewed applicants. No longer could anyone remove cards from the files without signing for them. In addition, written guidelines were issued to Department interviewers regarding the preliminary interview procedures. Improvements were also made in Background Investigation procedures. Investigators were forbidden to accept the withdrawal of any candidate without approval from a supervisor. In 1972, each investigator began to receive equal numbers of black and white candidates to investigate. To further increase accountability, in 1974 investigators began to work in teams. In 1974, the EEOP Report showed that rates of disqualification on the basis of background investigations for minorities and whites were about equal. Similar improvements were made in the Oral Board procedure. In 1973, the Department arranged that all applicants be asked similar questions by Oral Boards. Every Oral Board came to contain at least one minority member. In addition, an appeal process was set up. To further protect against abuse, the Department instituted a followup procedure to find out why black applicants who withdrew early from the hiring process did so and to encourage them to return. The written examination, however, continued to be problematic. In 1971, the Department used the Wonderlic exam in combination with the Otis and also introduced the SRA Pictorial Reasoning Test. From 1971 until late 1973, the Department went to another series of I.Q. Tests identified as valid for Chicago patrolmen. This so-called “Chicago Battery” also had a severe impact on black applicants, as demonstrated by the following statistics for 1972-1973. It was not until late 1973, with the institution of the “Detroit Battery” written examination, that pass rates on the written exam were equal for blacks and whites. Plaintiffs argue that the Department’s energetic 1968-1974 efforts to attract blacks and to make the Department’s hiring procedures non-discriminatory demonstrates that no affirmative action program was needed for promotions. This claim will be analyzed later in this opinion. However, it is very clear that Commander Ferrebee and Lieutenant Broadnax were correct when they concluded that it was not until 1973-1974 that the Detroit Police Department stopped its discriminatory hiring practices. B. Promotional Practices The Department’s promotional practices have varied over the years. Promotional requirements are complex; they consist of 1) standards for determining who may compete for promotions (eligibility standards); 2) standards for determining who will be promoted (eligibility for promotion); and 3) standards for determining the order in which those who compete will be promoted (promotional model weights and their application). Complicating any analysis is that these requirements have shifted in relative weights from year to year and that for some periods, the Department had two classifications for the lieutenants rank with separate lines of progression leading to each classification. 1. The Racial Make-up of the Department’s Supervisory Ranks 1967-1974 In 1967, blacks represented 2.1% of the Department’s supervisory workforce. 9 (2.6%) of the 348 Sergeants and 2 (1.3%) of the 158 Lieutenants were black. The ratio of black sergeants to black police officers was 1:25. The ratio for whites was 1:12. The ratio of black lieutenants to black police officers was 1:114. For whites the ratio was 1:26. By June of 1974, these numbers had multiplied; there were 61 black sergeants and 11 black lieutenants. However, when expressed as a percentage of the overall pool, the numbers were still minuscule. The reason is that the number of white sergeants and lieutenants had mushroomed. The number of white sergeants increased from 339 in 1967 to 1124 in 1974. The number of white Lieutenants increased from 156 in 1967 to 219 in 1974. Thus, despite the significant numerical increase, the Department in 1974 was 5.1% black at the sergeant’s level and 4.8% black at the lieutenant’s level. The significant increase in the number of supervisory officers was not paralleled by a corresponding increase in the numbers of patrolmen and patrolwomen. Between 1967 and 1974, the increase in their numbers was moderate — from 3757 to 4006. The ' Department thus became top-heavy with supervisory officers. The overall ratio of sergeants to police officers was reduced from 1:10.8 to 1:3.4. The ratio of lieutenants to police officers was reduced from 1:23.8 to 1:17.4. White officers benefited greatly from the numerical increase in the supervisory ranks. The ratio of white sergeants to white police officers was reduced from 1:10.4 to 1:2.8. The ratio of black seargeants to black police officers was reduced from 1:24 to 1:14.3. Similarly, the ratio of white lieutenants to white officers was reduced from 1:22.7 to 1:14.3. The ratio of black lieutenants to black officers was reduced from 1:107.5 to 1:79.3. Undoubtedly, one reason for the disparity in the ratio of black lieutenants to black officers was discrimination against blacks in hiring. The Detroit Police Department, like most police departments, only promoted from within. In other words, only patrolmen who had served in the Department were considered for promotion to the rank of sergeant and only sergeants in the Department were considered for promotion to the rank of lieutenant. No outsiders were brought in at the supervisory levels. Discrimination in the hiring of blacks meant that there were few black patrolmen. And few black patrolmen meant that there were few black candidates available to become sergeants and lieutenants. Defendants, however, allege that in addition, the promotional process was itself discriminatory and thus operated to further reduce the number of blacks who “made it” to the sergeant’s and lieutenant’s ranks. They also claim that the examination was not job-related. It is these issues which the following sections of this court’s opinion address. 2. Promotional Lines of Progression Until 1964, there were two lieutenant’s ranks, with separate promotional job sequences leading to them. “Uniform” sergeants and “uniform” lieutenants functioned on the patrol side; they generally supervised patrolmen at the various precincts. Detectives, detective sergeants, and detective lieutenants functioned on the investigative side. All sergeants and lieutenants functioned as supervisors. A diagram of the promotional sequences involved follows: Between 1965 and 1967/68, the two sergeants and two lieutenant’s ranks were merged. However, by the time of the 1969 promotional examination, the patrol side and investigative side distinctions were reestablished. All distinctions between patrol side and investigative side were abolis