Full opinion text
DECISION AND ORDER REYNOLDS, Chief Judge. In these two consolidated cases, the United States and a certified class of private plaintiffs challenge the promotion, transfer, and assignment practices in the Milwaukee Police Department. Presently before the Court are: (1) the certified class’ motion for approval of a proposed consent order; (2) counsel for the certified class’s motions to withdraw as counsel for named plaintiffs Bobbie Durrah, Ronnie Horton, and Lenard Wells; (3) the certified class’s motion to substitute the identity of one of the named plaintiffs; and (4) the certified class’s motion to make available to the Court the defendants’ police records and discovery documents previously submitted to the class. Additionally, the Court has been requested to sever these two cases so that the United States may proceed separately from the certified class. The cases will be severed, and the motions will be granted, except for the class’s motion to make available the defendants’ police records and discovery documents, which will be granted subject to the limitations set forth in this decision and order. I. PROCEDURAL BACKGROUND Civil Action No. 74-C-480 was filed on October 17, 1974, by the United States. The complaint alleged that the defendants had engaged in a pattern of racial discrimination in hiring, assignment, transfer, and promotion practices in the Milwaukee Police Department, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and provisions of the State and Local Fiscal Assistance Act, 31 U.S.C. § 1221 et seq. On July 25, 1975, the Court entered an interim order providing, in part, that for every three white applicants appointed to fill vacancies in the positions of police aide and patrol officer, two black applicants would also be appointed. This order presently remains in effect. In the spring of 1979, the Office of Revenue Sharing conducted an investigation of the Milwaukee Police Department. The results of the investigation formed the basis of an August 1979 preliminary determination that the Milwaukee Police Department had failed to comply with a provision of the Revenue Sharing Act prohibiting recipients of revenue sharing funds from engaging in discriminatory practices. The Office of Revenue Sharing determined that the City of Milwaukee (“the City”) had used promotion selection procedures and had engaged in assignment practices that adversely affected the employment opportunities of black police officers. These procedures and practices were not shown to predict job performance or to be required by business necessity. Pursuant to a voluntary compliance agreement, the City began to provide the Office of Revenue Sharing with detailed annual reports covering, inter alia, assignment and promotional data. On November 19, 1981, an organization of black police officers called the League of Martin (“the League”) and several individual black officers filed Civil Action No. 81-C-1465 against the City, the Milwaukee Police Department, the Milwaukee Police and Fire Commission, and several individuals holding positions of authority within the Police Department. The complaint alleged that the defendants had engaged in discriminatory practices with respect to assignments, transfers, promotions, and working conditions within the Police Department, in violation of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and the Civil Rights Act of 1870, 42 U.S.C. § 1981. The individual plaintiffs further alleged that the defendants had unlawfully retaliated against them for exercising their first and fourteenth amendment rights. The individual claims were based on 42 U.S.C. §§ 1981, 1983, 1985(2) and (3), 1988 and 2000e-5(f)(2), and the due process clause of the fourteenth amendment. These claims of retaliation came before the Court on the plaintiffs’ motion for a preliminary injunction on February 11-19, 1982. In a decision and order dated May 14, 1982, I held that the individual plaintiffs had established that they had been retaliated against for engaging in activity protected by the first amendment. On May 24, 1982, the Court certified that Civil Action No. 81-C-1465 be maintained as a class action. The class certified consists of all black persons who are presently City of Milwaukee police officers, or who in the future will be City of Milwaukee police officers, and who have been or will be subjected to racially discriminatory practices in assignments, promotions, discipline, and working conditions by the defendants. The plaintiffs League of Martin, Arthur Jones, Bobbie Durrah, Brian Suttle, Ronnie Horton, Lenard Wells, and Jane Doe were designated as the class representatives. Certification was made pursuant to Fed.R. Civ.P. 23(b)(2). Meanwhile, the United States renewed its investigation of assignment and promotion practices within the Milwaukee Police Department. The Assistant Attorney General thereafter determined that the defendants’ assignment of officers to the Tactical Enforcement Unit (“the Tac Squad”) of the Milwaukee Police Department unlawfully discriminated against blacks. On September 3, 1982, the United States filed a motion for supplemental relief. The United States therein requested an order establishing an objective, job-related procedure for assignments to the Tac Squad that did not adversely affect black applicants. Extensive discovery was undertaken in the following months. On September 17, 1982, the plaintiffs in Civil Action No. 81-C-1425 moved to intervene in Civil Action No. 74-C-480. This motion was superseded by a motion to consolidate the two actions filed September 27, 1982. Neither the defendants nor the United States opposed the motion to consolidate. Because the actions posed common questions of fact and law, the motion to consolidate was granted on January 7, 1983. A schedule for discovery and trial was established in an order dated February 1, 1983. On May 18, 1983, the United States filed a second motion for supplemental relief, based on the Assistant Attorney General’s determination that promotion procedures and assignments to and within the several geographic districts of the Milwaukee Police Department violated Title VII of the Civil Rights Act of 1964. The certified class joined in this motion. During this period, the parties were engaged in discovery. Objections to the discoverability of certain police records prompted the certified class to file several motions to compel discovery and to modify the Court’s scheduling order. The parties subsequently reached an agreement that the defendants’ six-month personnel evaluation ratings for police department employees promoted from the 1981 sergeant’s list and the defendants’ personnel promotional evaluation forms known as “PP-41’s” should be kept confidential. These two groups of documents were the subjects of protective orders entered on August 18, 1983 and September 28, 1983, respectively. These orders supplemented an order dated February 25, 1983, which rendered confidential the defendants’ promotional examination documents. The remaining discovery disputes were thereafter resolved, and the discovery motions were dismissed as moot on October 25, 1983. The possibility of settling this dispute was first discussed among the parties and the Court at a status conference on August 26, 1983. At that time the United States indicated that it had reached a tentative agreement with the defendants. It was agreed that on or before November 1, 1983, the defendants would inform the court of any progress towards settlement between the certified class and the defendants, and indicate whether a final pretrial conference would be necessary. Despite the efforts of counsel to negotiate settlement between the City and the certified class, a number of events impeded their progress. On September 15, 1983, named plaintiff Brian Suttle, a ten-year veteran police officer, was fired by defendant Police Chief Harold Breier. On October 27, 1983, Earl Ridgway, a thirteen-year veteran police officer and a board member of the plaintiff League of Martin, was fired by defendant Breier. On November 3, 1983, David Clarke, a black police officer with five years on the police force, was fired by defendant Breier. On the same day, named plaintiff Ronnie Horton, who had received injunctive relief in the Court’s order of May 14, 1982, was interrogated regarding an off-duty matter and was threatened with disciplinary action. The plaintiffs regarded these actions as retaliative and filed a motion for a temporary restraining order on November 10, 1983. They requested that the Court enjoin the defendants from terminating, or coercing resignations from, any nonprobationary black police officer unless approval of termination was first obtained from the Court. The Court held a settlement conference on November 16, 1983. At that time, counsel for the certified class indicated that they had participated in settlement discussions with the defendants and the United States, but that the firings of the black officers had brought settlement talks to a standstill. All parties emphasized that they wished to settle the case, but that they had been unable to reach an accord on any of the matters in dispute. The Court suggested that Mr. Zel Rice II act as a Special Master to assist the parties’ settlement efforts. The parties agreed that Mr. Rice’s assistance would be beneficial, and that they would resume negotiations under his direction. The matters raised in the motion for a temporary restraining order were left unresolved at that time. On November 18, 1983, the Court appointed Mr. Rice as Special Master for the purpose of negotiating a settlement. The parties agreed to set aside two weeks for negotiation. At this juncture, counsel for the certified class recognized the importance of having a negotiating team present at the settlement negotiations to assist the attorneys. On November 22, 1983, named plaintiff Arthur Jones, president of the League of Martin, mailed a letter to all League members and black officers requesting their attendance at a meeting to be held November 26. The letter emphasized the importance of the meeting and urged the recipients to attend. On the day of the meeting, the League’s Board of Directors and the class’s attorney met at Jones’ home. At this time, the Board selected a five-person negotiating committee. The committee consisted of named plaintiffs Arthur Jones and Lenard Wells and also Verbie Swanigan, William Wade, and John Wesley. Later, at the meeting, Jones indicated that these five persons had been approved by the Board to serve as a negotiating team, and directed any persons opposing the proposed negotiating team to voice their objections. A motion to approve the five-person team carried, and two alternates were selected. Negotiations with the Special Master began on November 28, 1983. Over the following two weeks, the parties exchanged written proposals and counterproposals until a particular issue had been thoroughly discussed and an agreement reached. When the attorneys, the negotiating team, and the Special Master were not all meeting together, there would be individual caucuses by the parties. At the conclusion of negotiations on December 8, 1983, the parties had reached an agreement in principle on all issues. At this time, the language of the consent order had not been agreed upon. However, the parties decided that the proposed order should be made public, and a copy was filed with the Court on December 15, 1983. That same day the Milwaukee Police Association and the Milwaukee Police Supervisor’s Organization (“the Unions”) filed a motion to intervene. They also contacted the parties and submitted written changes in the proposed consent order that reflected their concerns. The parties all rejected the Union’s proposed changes, and the Unions filed a complaint with the Wisconsin Employment Relations Commission on February 6, 1984. During this time, all of the parties agreed with the Unions to stipulations resolving the Union’s motion to intervene. The stipulations included a provision that no reverse racial discrimination claims would be made if the Unions were permitted to intervene. The stipulations were approved by the Court on January 25,1984. On January 3, 1984, counsel for the defendants caused to be introduced in the City of Milwaukee Common Council, File No. 83-1849, a resolution for approval of the proposed consent order. The matter was scheduled to go before the Common Council Judiciary and Legislative Committee on January 16, 1984. However, on January 13, 1984, counsel for defendants requested that the matter be removed from the agenda in view of the United States’ unexpected proposed changes in the language of the consent order. On January 25, 1984, the private class and the defendants filed a superseding copy of the proposed consent order containing the language changes. A comparison of the proposed order filed December 15, 1983, with the superseding copy indicated that the language changes were nonsubstantive. On January 26, 1984, counsel for all the parties and the Special Master met with the Court in a status conference. At that time the United States indicated that it still had language problems with the proposed consent order, and that further suggestions for changes could ensue. The Court advised the parties that a fairness hearing should be held so that members of the class and the public could have an opportunity to present their views on the proposed consent order. It was agreed that a notice of the fairness hearing would be sent out to class members one to two days after the City Common Council meeting on February 14, 1984, and that the defendants would arrange for a copy of the notice to be published in a local newspaper on February 18, 1984. On February 3, 1984, a letter was mailed to all members of the League, informing them of a meeting to be held on February 11, 1984. The purpose of the meeting was to discuss the proposed consent order and to elect the new officers of the League of Martin. At the meeting, counsel for the certified class and the members of the negotiating team described the negotiation process and the provisions of the proposed consent order. Plaintiff Arthur Jones, president of the League and a member of the negotiating team, spoke generally in favor of the proposed consent order. Plaintiff Lenard Wells, also a member of the negotiating team, spoke in opposition to the proposed consent order. There was no vote on ratification of the proposed consent order, nor was there any vote to approve, disapprove, or amend it. After discussion of the proposed consent order, there were nominations for president of the League of Martin. The nominees were the incumbent Arthur Jones and Vice-President Lenard Wells. By secret ballot, Arthur Jones was re-elected. On February 14, 1984, this case was discussed before the City Common Council’s Judiciary and- Legislative Committee. Plaintiff Lenard Wells addressed the committee and identified himself as a member of the League of Martin’s negotiating team and as a named plaintiff. He told the committee that he was disassociating himself from the settlement effort, and expressed his opinion that the proposed consent order did not offer remedies for the class allegations of racial discrimination. When queried by an alderman, Wells stated he was aware that the proposed consent order contained an enforcement provision respecting testing and promotion procedures. On that same date, the City of Milwaukee Common Council approved a resolution accepting the proposed consent order on behalf of the defendants. Notice was thereupon given to the class members that this case would come before the Court for a fairness hearing on April 5, 1984. Persons seeking an opportunity to express their views on the proposed consent order were instructed to mail or deliver written objections to the Clerk of Court sufficiently early so that all objections would be received by March 30, 1984. The notice also provided that anyone filing an objection would be given an opportunity to be heard at the fairness hearing, and that persons wishing to be heard could appear with or without the assistance of counsel. The court thereafter received forty written statements and requests to be heard. Several of these submissions bore multiple signatures. Indeed, a submission by plaintiffs Lenard Wells, Ronnie Horton, and Bobbie Durrah is accompanied by a list of one hundred six signatures, although some of these latter signers filed individual statements. Seven persons filed requests to speak in favor of the proposed consent order, two persons filed requests that did not disclose their opinions on the matter, and the remaining persons submitted objections. The fairness hearing began on Thursday, April 5, 1984, and lasted two days. At the outset, the Special Master gave an overview of the negotiation efforts and the results the parties had obtained. After-wards, counsel for the parties gave their several reports, explaining the provisions of the consent order with reference to case law and the Uniform Guidelines on Employee Selection Procedures. Thereafter, the persons filing statements took their turns voicing their objections to, or support of, the proposed consent order. At the close of the hearing on April 6, the Court stated that Civil Action Nos. 74-C-480 and 81-C-1465 would be severed. The Court also gave all the parties and interested persons until April 20, 1984, to file additional materials with respect to the proposed consent order. The matter has been under advisement since that date. II. SEVERANCE OF THE ACTIONS During the course of the parties’ settlement efforts, the Special Master advised the Court that the United States, through the Civil Rights Division of the Department of Justice, had several nonsubstantive disagreements with the language in the proposed consent order filed January 25, 1984. Those disagreements have continued up to the present. While it is not altogether clear why these matters could not have been resolved prior to the fairness hearing, it would be unwise to delay decision on the certified class’s and defendants’ motion for approval of the proposed consent order. The fact that the United States’ disagreement is purportedly over nonsubstantive matters eliminates the risk of a subsequent collateral challenge. The better approach is to proceed to the merits of the private class’s, the defendants’, and the objectors’ contentions with respect to the proposed order submitted on January 25. Because the United States does not agree with the proposed consent order presently under review, and because none of the parties has objected to severance, the United States’ action will be severed from the private class action. Accordingly, Civil Action Nos. 74-C-480 and 81-C-1465 are severed. III. MOTIONS TO WITHDRAW AS COUNSEL FOR PLAINTIFFS BOBBIE DURRAH, RONNIE HORTON, AND LENARD WELLS Attorneys Curry First and Barbara Zack Quindel, counsel for the certified class, have moved to withdraw as counsel for plaintiffs Bobbie Durrah, Ronnie Horton, and Lenard Wells. The basis for the motion is that these plaintiffs have decided to object to the proposed consent order and prosecute the lawsuit against the defendants. Thus, there is a direct conflict between these plaintiffs and the plaintiffs and class members who support the proposed consent order. The court has general supervisory power of the attorneys certified to represent the class in a class action. See Piel v. National Semiconductor Corp., 86 F.R.D. 357, 366 (E.D.Pa.1980). Additionally, counsel for the class have a duty to notify the court of any conflicts of interest among class members that arise during litigation. Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157, 1176 (5th Cir.1978); National Ass’n of Regional Medical Programs v. Mathews, 551 F.2d 340, 346 n. 1 (D.C.Cir. 1976), cert. denied, 431 U.S. 954, 97 S.Ct. 2671, 53 L.Ed.2d 270 (1977). Class counsels’ loyalty extends not merely to the named plaintiffs or, for that matter, merely to absentee class members. Because a large class of persons is likely to include members with divergent concerns, the court should be apprised of conflicts so that steps may be taken to insure that the divergent concerns are protected. The Court is satisfied that the fairness hearing procedure established in this case sufficiently protects the aforenamed objectors’ interests, and attorneys First and Quindel should no longer be required to represent them. Their motions to withdraw are granted nunc pro tunc April 5, 1984. IV. MOTION TO SUBSTITUTE IDENTITY OF NAMED PLAINTIFF DOROTHY DOWNING FOR JANE DOE When Civil Action No. 81-C-1465 was filed, the plaintiffs filed a motion for permission to use the fictitious name Jane Doe for one of the plaintiffs. Plaintiff Dorothy Downing believes that there is no longer any basis for using this pseudonym, and has moved for leave to proceed as a named plaintiff under her true identity. This motion will be granted. V. MOTION TO MAKE AVAILABLE TO COURT DEFENDANTS’ POLICE RECORDS AND PRETRIAL DISCOVERY MATERIALS The certified class has moved for leave to file three large boxes of materials submitted to the class by the defendants during the course of discovery. The basis for this motion is that the Court may find some of the information pertinent to the issues of whether the case against the defendants is sufficiently strong to prompt approval of the proposed consent order, and whether the proposed consent order is fair, reasonable, and adequate. The motion will be granted in part. While many of the documents in question are no doubt highly relevant to the issues cited, matters that are made available to the Court are generally filed with the Clerk of Court and are matters of public record. Thus, any of the documents proposed to be made available to the Court would also become available for public inspection. As the defendants correctly argue, some of the materials are personnel files that are subject to protective orders and should not be made public. Therefore, the motion will be granted only insofar as it is consistent with protective orders previously entered in this case. The discovery materials will be made generally available, except for those which are subject to a protective order. These latter documents will remain under seal. VI. CERTIFIED CLASS’S MOTION FOR APPROVAL OF PROPOSED CONSENT ORDER On April 5, 1984, the certified class filed a motion for approval of the proposed consent order, and argued in support of its motion during the fairness hearing. The Court has reviewed the class’ submissions and the statements and submission of the objectors, and determines that the proposed consent order should be approved. The requirement of judicial approval of the proposed consent order derives from Fed.R.Civ.P. 23(e), which provides: Dismissal or Compromise. A class action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs. The fundamental issue to be resolved in approving a class action settlement is whether, regarded as a whole, the settlement is “fair, reasonable and adequate.” Armstrong v. Board of School Directors, 616 F.2d 305, 313 (7th Cir.1980). The analysis is divided into seven discrete inquiries respecting: (1) the strength of the plaintiffs case on the merits balanced against the amount offered in settlement; (2) the opinion of counsel on the fairness of the settlement; (3) the stage of the proceedings and the amount of discovery completed; (4) whether there was collusion between the parties in reaching the settlement; (5) the length, complexity, and cost of further litigation; (6) the defendants’ ability to pay; and (7) the reaction of class members to the proposed settlement and their opposition, if any, to the settlement terms. The first factor is generally regarded as the most important. The Court undertakes these inquiries with an eye to the public policy favoring voluntary resolution of litigation through settlement. “In the class action context in particular, ‘there is an overriding public interest in favor of settlement.’ ” Id. at 813, quoting Cotton v. Hinton, 559 F.2d 1326, 1331 (5th Cir.1977). Nonetheless, the Court is not free to modify the terms of a proposed settlement agreement. The Court may either grant a motion for approval and adopt the settlement as an order of the Court or reject it in its entirety. There is no occasion to set aside certain provisions of the settlement agreement and replace them with provisions of the Court’s own device, even though the Court’s substitutions might be in accordance with case law and beneficial to all concerned. The Court simply accepts or rejects the agreement as it is presented. See Wattleton v. Ladish Co., 89 F.R.D. 677, 680 (E.D.Wis.1981). With this in mind, I turn to the proposed consent order and the certified class’s argument in support thereof. 1. The Strength of the Plaintiffs’ Case Balanced Against the Amount Offered in Settlement The plaintiffs’ claims of liability are predicated on 42 U.S.C. §§ 1981, 1983, and 2000e-5, and the fourteenth amendment. In order to prevail on their claims under 42 U.S.C. § 1981 and 1983 and the fourteenth amendment, the plaintiffs must show that the defendants’ actions were undertaken with discriminatory intent. See General Building Contractors Ass’n v. Pennsylvania, 458 U.S. 375, 383-391, 102 S.Ct. 3141, 3146-3150, 73 L.Ed.2d 835 (1982); Washington v. Davis, 426 U.S. 229, 239, 96 S.Ct. 2040, 2047, 48 L.Ed.2d 597 (1976); Mescall v. Burrus, 603 F.2d 1266, 1270 (7th Cir.1979). Proof of discriminatory intent is also required in actions under 42 U.S.C. § 2000e-5 where the plaintiff alleges disparate treatment, although in some instances it may be inferred from a showing of disparate treatment. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 1854 n. 15, 52 L.Ed.2d 396 (1977). By contrast, plaintiffs alleging that a facially neutral employment practice has a disparate impact on a protected group in violation of 42 U.S.C. §§2000e-2 and 2000e-5 need not show discriminatory intent, To state a prima facie case, the plaintiffs need only show that the practice results in a significantly adverse statistical impact on the protected group. Dothard v. Rawlinson, 433 U.S. 321, 329, 97 S.Ct. 2720, 2726, 53 L.Ed.2d 786 (1977). Once a prima facie case is shown, the burden shifts to the employer to demonstrate that the practice under attack is justified by a legitimate relationship to the employment in question. The plaintiff may rebut this showing with proof that an alternative practice would also serve the employer’s legitimate interests without a disparate effect. Id. Although the defendants have not conceded liability on any of the plaintiffs’ claims, the plaintiffs have stated a prima facie case of disparate impact. Based on the parties’ stipulations of fact, and other submissions and previous hearings in this matter, the Court finds that the plaintiffs have demonstrated an adequate likelihood of succeeding at trial. The first matter of concern to the parties is the issue of promotions to so-called “nonexempt” positions. These are called nonexempt positions because persons wishing to be promoted thereto are required to undergo an examination procedure. These positions are the positions of detective, sergeant, lieutenant of police, and lieutenant of detectives. For all years relevant to this action, police officers seeking promotion to nonexempt positions were selected according to procedures promulgated and administered by the defendant Milwaukee Fire and Police Commission (“the Commission”). To be eligible to compete for promotion to nonexempt positions, a candidate must be a nonprobationary police officer with a certain number of years of service in a particular classification. For example, to be eligible for promotion to sergeant, a candidate must have at least four years of service as a police officer. For purposes of promotion to sergeant and detective, candidates may gather credits in academic course work as an alternative to fulfilling a portion of the time requirement. All candidates must initially pass a written examination, which serves as a threshold screening device. The procedures following examination have varied in the past but have generally consisted of: (1) either an oral interview or an “assessment center”; (2) a departmental or efficiency rating; and (3) a seniority rating. The assessment center is a series of exercises purportedly designed to simulate the job duties of the position for which a candidate has applied. The departmental or efficiency rating is given by the defendant Chief of Police. The Chief appoints five high ranking police officers from within the Police Department to a panel. Supervisors of the candidates prepare PP-41 performance evaluation forms, which are forwarded to the appointed panel. The panel reviews the candidates’ PP-41s and personnel files. On the basis of their review, each member of the panel gives the officer a numerical score. The average of the scores becomes the candidate’s departmental rating, which is submitted to the Chief. The scores _ on the several components are compiled into a composite score. The weight accorded to each component of the procedure has varied during the years in question as the following chart indicates: The composite scores are arranged on an eligibility list. Promotions are made from the eligibility list, as vacancies arise, with the first vacancy going to the highest ranking candidate on the list. There are presently one hundred fifty-six sergeants in the Police Department, seven of whom are black. During the period relevant to this action, there have been two examinations for promotion to sergeant, in 1977 and 1981. An expert statistician for the certified class, Dr. J.L. Stebbins, reviewed the numbers of black and white officers who were tested, who passed, and who were promoted. He also compared the passing and selection rates of black candidates with those of white candidates, and concluded that the selection rates for black officers in the two sergeant examinations violated the four-fifths rule established in the Uniform Guidelines on Employee Selection Procedures (“Uniform Guidelines”), 29 C.F.R. § 1607.4D. With respect to black candidates’ written test scores, Dr. Stebbins further found a statistically significant difference in the mean scores of the black candidates as compared to the white candidates. His report was filed with the court on August 25, 1983. There are two hundred thirty-six detectives in the Police Department, fourteen of whom are black. As with the police sergeants, the examinations relevant to this provision were administered in 1977 and 1981. Prior to 1977, only those officers who had been assigned to special plainclothes duty and had served one year as acting detective in the Detective Bureau were eligible to take the detective examination. This practice was eliminated in 1977, and a method was established whereby acting detectives could waive the written test portion of the selection procedures for the alternative of automatic receipt of a base score of seventy in the written test plus additional points awarded on the basis of seniority. Dr. Stebbins again compared data with respect to the black and white candidates for detective, although he did not analyze data with respect to those acting detectives who elected to take the base score rather than the written examination. Dr. Stebbins’s report once again shows a violation of the Uniform Guidelines’ four-fifths rule, and a statistically significant disparity between black candidates’ and white candidates’ test scores in both years. There are twenty-three lieutenants of detectives in the Police Department, none of whom are black. Dr. Stebbins’s review of the passing and selection rates for examinations for this position led him to conclude that the procedures violated the four-fifths rule. There presently are twenty-five lieutenants of police in the Police Department, none of whom are black. Examinations for this position were administered in 1977 and 1982. The 1977 selection rate for white candidates was six percent as compared to zero percent for black candidates. With respect to the 1982 examination, three of the four black candidates passed the examination, and it is projected that one of these will be promoted to lieutenant of police. Dr. Stebbins did not submit conclusions with respect to this position. The certified class also retained the services of Dr. James L. Outtz, an industrial psychological expert. His report, which was also filed on August 25, 1983, contained four major findings with respect to nonexempt promotions: (1) The 1981 and 1977 written tests for the position of Police Detective have not been demonstrated to be content valid. Neither test was developed on the basis of a proper job analysis. Both tests contain a significant number of invalid items and both were used in a manner that was not justified under the Uniform Guidelines. (2) The 1981 and 1977 written tests for the position of Police Sergeant have not been demonstrated to be content valid. Neither test was developed on the basis of a proper job analysis. Both tests contain a significant number of invalid items and both were used in a manner that was not justified under the Uniform Guidelines. (3) The Departmental Ratings used in conjunction with the written tests above were highly subjective, non-standardized and have not been demonstrated to be content valid. (4) The requirement of a specified number of years of service in the next lower position in order to be promoted to the positions of Detective, Police Sergeant, Lt. of Detectives and Lt. of Police is arbitrary, without job related foundation and has not been demonstrated to be valid. While a finding of a violation of the Uniform Guidelines is not dispositive of the issue of liability, it is entitled to great deference. Albemarle Paper Co. v. Moody, 422 U.S. 405, 431, 95 S.Ct. 2362, 2378, 45 L.Ed.2d 280 (1975). Under the Uniform Guidelines, a selection rate for protected groups which is less than four-fifths of the rate for the group with the highest rate is evidence of adverse impact, so the burden shifts to the employer to establish validity. In this case, Dr. Stebbins’s report was offered in support of the contention that the promotion procedures for nonexempt positions violate the four-fifths rule, and Dr. Outtz’s report is offered to rebut any contention that the procedures are valid. Thus, the record presently supports the conclusion that plaintiffs could succeed on a claim of disparate impact under 42 U.S.C. § 2000e-5 with respect to the nonexempt positions of sergeant, detective, and lieutenant of detectives. Paragraphs 6 through 23 of the consent order cover promotions to nonexempt positions. The order forbids the defendants to use the current selection procedures for sergeants and detectives. It provides that the Commission must modify the existing components of the procedures for these two positions so that they conform to the Uniform Guidelines. In one respect, this relief goes somewhat beyond the relief that the plaintiffs might receive if they prevailed at trial. Some courts have implicitly held that where promotion depends upon the cumulative results of several tests, the procedure as a whole has a discriminatory impact and must be dispensed with in its entirety. See, e.g., Kirkland v. Department of Corrections, 520 F.2d 420, (2d Cir.1975), cert. denied, 429 U.S. 823, 97 S.Ct. 73, 50 L.Ed.2d 84 (1976). However, a court in this circuit has required that only so much of a multipartite procedure as can be shown to have a disparate impact need be revised. United States v. City of Chicago, 411 F.Supp. 218, aff'd, 549 F.2d 415 (7th Cir. 1976), cert. denied sub nom Arado v. City of Chicago, 434 U.S. 875, 98 S.Ct. 225, 54 L.Ed.2d 155 (1977). The proposed consent order resolves this legal conflict in the plaintiffs’ favor because new promotion procedures must be devised, even though it has not been shown that the existing sub-parts each have an adverse impact on the certified class. By contrast, the proposed consent order does not include a prohibition on continued use of the procedures for selecting lieutenants of detective, and in this respect, the order falls short of what plaintiffs might receive were they to prevail at trial. This concession marks a compromise in the negotiations. Apparently, the defendants were prepared to challenge Dr. Stebbins’s conclusions in this regard because the sample for analysis was too small to yield accurate results. Nonetheless, the proposed consent order does provide for continued scrutiny of such procedures as are followed in the future, so that appointments may be stayed if it is determined that the procedure has an adverse impact. The proposed consent order also eliminates any procedural delays that might result from charging either party with the sole responsibility of promulgating new procedures by providing for the appointment of a mutually agreed upon testing expert who will consult with the Commission in developing and administering the new procedures. The order permits the plaintiffs to challenge the testing expert’s work product within a specified period if it appears that the testing expert’s analyses do not conform to the Uniform Guidelines, and to challenge the testing administration if it appears that the Commission has not followed the expert’s recommendation. The Court finds that the relief with respect to promotions to nonexempt positions is adequate when viewed in light of the strength of plaintiffs’ case. The second matter covered by the proposed consent order is the individual relief in the context of nonexempt promotions. The parties acknowledge that numerous black officers took the examinations for promotion to sergeant and detective, but they were not promoted. They also recognize that development of the new procedures will take time. The plaintiffs entered the negotiation process seeking the same percentage of black persons among the ranks of sergeant and detective as exists among the ranks of police officer; that is, nine percent. They contended that nine percent of the positions of sergeant and detective would be held by black persons absent a discriminatory promotional procedure. The defendants, while not conceding that there had been discrimination, argued that the appropriate figure to use in fashioning a remedy was 6.4 percent. According to the defendants, this figure represents the percentage of black officers who met the eligibility requirements for promotion to sergeant and detective using a minimum of three years of service requirement. Paragraphs 23 through 30 of the proposed consent order provide for promotions of certain black officers. The numbers agreed upon reflect a compromise between the parties. With respect to the promotions to sergeant, the order provides that officer Verbie Swanigan 'will be promoted to fill the next vacancy among the sergeants and will receive back pay and retroactive seniority. The order also creates a pool from which three other sergeants will be selected. Of these three, the first two to be selected will be officers who passed the 1981 examination without the addition of a constant reflecting the difference in the mean scores of white and black officers taking that examination. Officers qualifying under this standard will be required to take a special assessment center exercise administered by the Commission. The Commission will select from those officers successfully completing the exercise two officers to fill the two vacancies following Swanigan’s promotion. The third officer to be promoted shall be promoted on the basis of his composite score under the new procedures to be established by the expert and the Commission. If the procedure for promoting the first two officers does not result in two black officers becoming available for promotion to sergeant, then the first two will be selected in the same manner as the third. The three officers so appointed will receive retroactive seniority. Finally, those officers who took the written examinations for sergeant in 1977 or 1981 and who have not been promoted to sergeant and who will not be so promoted under the order are entitled to share in a special monetary relief pool. Promotions to detective are the subject of paragraph 26 of the proposed consent order. The defendants agree therein to select the five highest scoring black police officers from the 1981 detective eligibility list who are available when vacancies occur. The order also establishes a second special relief monetary pool for those officers who took the 1977 or 1981 written examination for detective, and who were not promoted to either sergeant or detective and who will not be so promoted under the order. The five officers who are promoted will be given retroactive seniority. Paragraph 27 covers promotions to lieutenant of police. This paragraph simply provides that the current eligibility list for this position shall be extended to insure appointments through the eighth party on that list. Paragraphs 28 through 30 establish a procedure for promoting certain officers to lieutenant of detectives. First, the parties agree that Darrell Rodgers, the highest ranking black detective on the 1980 eligibility list who did not receive a promotion shall be appointed to the next vacancy among the lieutenants of detectives. Plaintiff Arthur Jones shall be promoted to fill the next vacancy, provided he passes all the components of the next lieutenant of detectives’ examination. Additionally, Johnnie L. Smith, the remaining black detective on the 1980 eligibility list, will receive the total back pay award from a third special monetary relief pool, unless Arthur Jones fails a component of the lieutenant of detectives’ examination. In that case, Johnnie Smith would be the next to be promoted to lieutenant of detectives, and the award from the special monetary relief pool would be paid into a compensatory relief pool for the benefit, of the class members. Interim relief in the form of numerical goals and accelerated promotion of minority persons from among qualified applicants is both constitutional and appropriate to compensate for discriminatory employment practices. See United States v. Chicago, 411 F.Supp. at 242. In this case, the proposal provides numerical goals for certain positions within the Milwaukee Police Department, which will be met depending in part on the availability of qualified personnel. The Court finds that this form of relief is appropriate in this case. The third item covered in the proposed consent order is the issue of procedures and relief with respect to miscellaneous exempt positions. These positions are generally within specialized bureaus, such as the Identification Bureau or the Bureau of Communications. Promotions to these positions are presently exempt from the examination process. The promotions are made by the Chief of Police and are approved by the Commission. Most persons promoted to these positions are police officers previously assigned to particular specialized bureaus. .As an assignee, the police officer learns the skills necessary to be qualified for the exempt promotion. Of the one hundred nine officers holding miscellaneous exempt positions in the Police Department, only one is black. Between the years of 1975 and 1981, there were ninety-one promotions to miscellaneous exempt positions, but only one of these went to a black officer. There are no uniform procedures or standardized criteria for assigning police officers to the special bureaus. The decision rests solely with the Chief of Police, and there has been no posting of vacancies when there are positions in these bureaus to be filled. The total exclusion of black officers from all but one of these positions, the subjectivity of the assignment process, and the closed nature of the selection procedure persuade the Court that the plaintiffs could prevail on claims of disparate treatment and disparate impact with respect to the miscellaneous exempt positions. See International Brotherhood of Teamsters v. United States, 431 U.S. 324, 342 n. 23, 97 S.Ct. 1843, 1858 n. 23, 52 L.Ed.2d 396 (1977). The proposed consent order responds to this problem in paragraphs 31 through 33 and paragraph 38.' The Commission has agreed to retain an expert to determine whether certain positions should remain exempt. With respect to those positions that remain exempt, the Commission confers with the expert and modifies the qualifications for that position to insure the qualifications are job related. Thereafter, all appointees to that position must meet the qualifications. Paragraph 33 creates a pool of black officers who qualify for the positions and who have service dates of January 1, 1982, or earlier. Vacancies in the exempt positions will then be filled with officers selected from this pool, although the Commission is not required to fill more than twenty-five percent of the vacancies with officers selected from the pool. Finally, the parties agree that a black person shall be appointed to the next vacant police officer, sergeant, or detective position in each of several specified bureaus. In view of the fact that there are almost no blacks in any of these special exempt positions, and in the absence of any plausible explanation for this disparity, the Court determines that this form of relief is entirely appropriate. The fourth problem to be resolved by the proposed consent order involves departmental assignments. This includes assignment to the Tac Squad and assignments to the Police Department’s geographic districts. The Tac Squad (Tactical Enforcement Unit) was established by Police Chief Breier in 1967. It currently has approximately seventy-six officers assigned to it. At the time Civil Action No. 81-C-1465 was filed, no black officer had ever been assigned to the Tac Squad. In August 1982, two black officers were assigned to the Tac Squad for the first time. Officers regard an assignment to the Tac Squad as an opportunity for upward mobility in the Police Department. The proposed consent order fashions a procedure for Tac Squad assignments. Applicants may submit a written application to their District Commanders no more than once per year. The commanding officer issues a recommendation with respect to each applicant, based on the applicant’s qualifications and interest. Officers who are recommended are placed in a pool of eligible applicants and remain eligible for two years. They also undergo further evaluation by the Tac Squad in accordance with procedures approved by the Chief of Police. The proposed consent order also fashions immediate relief for black officers with service dates of January 1, 1980, or earlier. If these officers submit timely applications, they will be screened for recommendations by their commanding officers. Among those who receive recommendations, two will be assigned to fill the next two vacancies on the Tac Squad. At least two more black officers will be assigned to the Tac Squad in each of the next two years. The Court approves this form of relief. Once again, the history of exclusion of black officers from the Tac Squad and the absence of objective criteria for selecting assignees persuades me that the plaintiffs could well prove discrimination in this context, and immediate corrective action and the promulgation of a uniform procedure for future assignments are appropriate responses to the problem. The Police Department is divided into seven geographic districts. The south side of Milwaukee, which is more predominantly white than other regions of the city, is divided into Districts Two and Six. Black officers have never been assigned to these two districts. Intentional segregation is acknowledged in this context, although the argument is made that black officers relate better to the problems and needs of the black community and should, therefore, be assigned to those areas. The Court is persuaded that the plaintiffs could prove intentional discrimination and is not impressed by the proffered justification for this practice. The rationale is based on a racial stereotype that blacks work better with blacks, and on a premise that the race of these officers is directly related to their ability to do the job. Title VII does not permit discriminatory employment practices to rest on these grounds. Knight v. Nassau County Civil Service Commission, 649 F.2d 157, 162 (2d Cir.), cert. denied, 454 U.S. 818, 102 S.Ct. 97, 70 L.Ed.2d 87 (1981). The proposed consent order provides that two volunteering black officers will be immediately transferred to each of Districts Two and Six. An additional four black officers are to be assigned to each of these districts within one year. This form of relief is approved. There is little question that the segregation was intentional and was based on considerations that the law does not permit. While one could say that this portion of the consent order establishes racial quotas for Districts Two and Six, any argument of reverse discrimination would necessarily fail, because there has been no showing, that assignments to the various districts are made on the basis of seniority, merit, and so forth. The fifth subject of the proposed consent order is the establishment of standardized assignment procedures. The Police Department has never articulated any criteria for determining eligibility for assignments to specialized bureaus or specialized assignments within districts, nor has it ever providéd formal notice of vacancies within the specialized bureaus or in the miscellaneous exempt positions. The Chief of Police has stated that the only criterion for assignment to a bureau or a miscellaneous exempt position is his belief that the officer is “the best qualified for the position.” The proposed consent order establishes a procedure for applications to certain of the specialized bureaus. Generally, the Chief of Police is required to state all criteria that are considered in selecting officers for particular assignments. Consideration of any other criterion is forbidden thereafter. Additionally, the Police Department is required to post notices of vacancies in special bureaus at the bureaus and the district stations. The proposed consent order also requires the Chief of Police to review the criteria for assignments within special districts, and to indicate which criteria are to be considered by the district commanders when making their assignments. These assignments are to be reviewed by the district commanders once every three months, and no assignment can be continued beyond three months in the absence of special circumstances. The Court approves these procedures. Standardless, subjective selection procedures often facilitate covert discrimination. See Stewart v. General Motors Corp., 542 F.2d 445 (7th Cir.1976), cert. denied, 433 U.S. 919, 97 S.Ct. 2995, 53 L.Ed.2d 1105 (1977). Assuming the plaintiffs prevailed on their claims of discrimination, this Court would be empowered to order the defendants to develop objective standards for assignments and to provide for notice to all interested persons. Given the plaintiffs’ showing with respect to their claims of discrimination in promotion and assignment, the Court approves the procedures set forth in paragraphs 39 through 41 of the proposed consent order. In addition to provisions for recordkeeping and several other miscellaneous matters, the proposed consent order provides for a compensatory relief fund. While neither compensatory nor punitive damages are available in actions under 42 U.S.C. § 2000e-5, see Albemarle Paper Co. v. Moody, 422 U.S. at 419, 95 S.Ct. at 2372, the plaintiffs have predicated their claims in part on 42 U.S.C. §§ 1981 and 1983. Compensatory and punitive damages are available under both of these latter statutes in appropriate cases. Thus, in addition to the back pay relief afforded elsewhere in the order, the plaintiffs bargained for damages to the class based on what they perceived to be purposeful discrimination. The plaintiffs negotiated for a compensatory relief pool of $99,000. Of this amount, $29,000 is earmarked for resolution of individual claims of discrimination that were the subject of this Court’s order of May 14, 1982, and for resolution of an outstanding charge filed with the Equal Employment Opportunity Commission by Earl Marshall. The remaining $70,000 is to be distributed among the named plaintiffs and the members of the class, with $12,000 going to the named plaintiffs. The amount that will ultimately go to each class member will not be very large, yet this form of relief is rather unusual, because monetary relief in cases of this nature is usually limited to back pay. The Court finds that the distribution of $58,000 among the class members as compensatory relief is a fair compromise in this case. While the plaintiffs have shown a strong likelihood of succeeding at trial on a claim of disparate impact, the matters presently before the Court do not lend such strong support to their claims of intentional discrimination, except with respect to the segregation of Districts Two and Six. This is not to say that plaintiffs would be unable to prove discriminatory intent; it is only a recognition that problems of proof attend a required showing of intent. While the amounts the class members will recover are indeed small, all the class members are benefitted by the proposed consent order’s prohibition against discriminatory practices in promotions, transfers, and assignments, and this was clearly the primary objective of the lawsuit. The provision for monetary relief in the form of a compensatory relief fund will be approved. In sum, the Court is satisfied that the plaintiffs have demonstrated a strong chance of prevailing on at least some of their claims if this matter were to proceed to trial. The relief afforded in the proposed settlement responds to the plaintiffs’ claims in a manner that is fair and reasonable in the unique context of this case. Therefore, my consideration of the merits of the plaintiffs’ claims and the terms of the settlement leads me initially to conclude that the proposed consent order should be approved. 2. Opinion of Counsel on the Fairness of the Settlement All the attorneys who negotiated the proposed consent order favor its approval, except for counsel for the United States, whose position is indeterminate. The Court is impressed by the skill and experience of these attorneys, and does not question their ability adequately to present their clients’ interests. 3. Stage of the Proceedings and the Amount of Discovery Completed This action was tentatively settled on the eve of trial, after a massive discovery effort. There is no question that all parties and the Court are presently able to render an informed judgment on the merits of the plaintiffs’ claims. Thus, there is no risk that the defendants have been pressured to settle a frivolous action. 4. The Possibility of Collusion Among the Parties in Reaching the Settlement Agreement There is no indication that this settlement was tainted by improper collusion. The parties all indicated an interest in settling this matter, yet the negotiations broke down on at least two occasions when the parties’ positions appeared inflexible. Additionally, the presence of the Special Master during the negotiations eliminated any possibility of abuse. 5. The Length, Complexity, and Cost of Further Litigation Cases of this variety require vast amounts of time for preparation. For example, Civil Action No. 81-C-1465 has been on this court’s civil docket for over two years, and while that is not an extraordinary length of time, the matter should certainly be tried promptly in fairness to the parties, if it is to be tried at all. However, if the proposed consent order is rejected, the parties will require additional time to notify their witnesses and prepare for a final pretrial conference. Trial of the liability phase of this lawsuit would certainly take several weeks, and if the plaintiffs prevailed, an additional week or two would be devoted to arguments on remedy. That would not end the matter, for the losing party would probably appeal. In sum, this matter could remain in the courts well into 1987. Immediate relief is preferable to another several years of litigation, which could well bring unforeseen results depending on the composition of the Supreme Court in future years. Additionally, counsel for the plaintiffs have devoted substantial financial resources to this case. They have retained two expert witnesses who will have to be compensated. They have devoted an enormous amount of their time to discovery and negotiation efforts, presumably sacrificing other opportunities. While I do not suggest that the City’s resources are infinite, it clearly has the upper hand in a battle of economic attrition. In this regard, settlement is in the interest of the certified class. 6. The Defendants’ Ability to Pay The defendants have agreed to pay the amounts discussed earlier in this order, and have made no suggestion of hardship. This factor is not at issue. 7. Reactions of the Class Members to the Settlement Agreement The remaining factor to be considered is whether the class members’ objections to the proposed consent order are so substantial as to demand that I reject the proposal and set the matter down for trial. I have reviewed the objectors’ submissions, and considered the testimony of those who spoke at the fairness hearing. While I acknowledge that many of the objections are well grounded, I conclude that approval of the proposed consent order is in the class’s interest. At the outset, I observe that while the presence of objecting class members is a relevant factor, it is not dispositive even when many class members object. Armstrong v. Board of School Directors, 616 F.2d 305, 326 (7th Cir.1980). Thus, other courts have approved settlements over the objections of large numbers of class members. See, e.g., Reed v. General Motors Corp., 703 F.2d 170 (5th Cir.1983) (settlement approved over objections of more than six hundred of 1,469 class members and twenty-three of twenty-seven named plaintiffs). Nonetheless, the presence of so many purported objections in this case is cause for concern. Prior to the fairness hearing, the Court received thirty-one submissions opposing the consent order, and fifteen of these were from class' members. One of them, a “Memorandum of Exceptions,” was prepared by three of the named plaintiffs and was accompanied by the signatures of one hundred six class members. Of these one hundred six signators, thirteen filed individual objections. Thus, the Court estimates that approximately one hundred eight class members oppose part or all of the proposed consent order. The class is comprised of approximately two hundred persons. While the facts surrounding the gathering of the one hundred six signatures were the subject of dispute at the fairness hearing, the Court made a finding at the close of the hearing that more than fifty percent of the class opposed part or all of the proposed consent order. Counsel for the certified class now argue that there are really only twenty-three objectors to the proposed consent order. They cite the concessions of two of the objectors at the fairness hearing that some of the signators never read the “Memorandum of Exceptions,” and that others only partially agreed with the memorandum’s objections. They also refer to a