Full opinion text
ORDER MYRON H. THOMPSON, Chief Judge. Plaintiff Humphrey L. Shuford, an African-American, initially brought this employment discrimination lawsuit claiming that he had been denied promotions in Aabama’s postseeondary educational system because of his race. He named as defendants the Aabama State Board of Education and its chancellor and individual board members and the Atmore State Technical College and its president. Shuford charged that the defendants had violated Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.A. §§ 2000e through 2000e-17; 42 U.S.C.A. § 1981; the fourteenth amendment to the United States Constitution, as enforced by 42 U.S.C.A. § 1988; and § 2 of the Voting Rights Act of 1965, as amended, 42 U.S.C.A. § 1973. He invoked the jurisdiction of the court based on 28 U.S.C.A. § 1843 and 42 U.S.C.A. § 2000e-5(f)(3). By amended complaint, Shuford sought to represent all African-Americans denied employment in or promotion to presidential, faculty, administrative, or superviso-’ ry positions in the postseeondary system. The court subsequently.permitted four women to intervene as plaintiffs in this lawsuit to raise claims of sex discrimination in employment in the postseeondary system on behalf of female professional educators. Shuford and the defendants have submitted to the court a proposed partial consent decree which would resolve’ the race-based claims -.against the postseeondary system. This cause is currently before the court on their joint motion for approval of this proposed compromise and settlement. After re-, viewing the decree and after considering all comments for and against it, the court has concluded that ■ the decree -should be approved. I. BACKGROUND Shuford has been employed by the 'State of Aabama’s postseeondary educational system in excess of 20 years/ The postseeondary system is comprised of 33 junior, technical, and community colleges across the state: junior colleges provide a general academic education; technical colleges provide an education in various trades; and community colleges combine both types, .of education. In his original complaint filed on February 24, 1989, Shuford alleged that he was denied several promotions at Atmore State Technical College on the basis of his race and was required to train the less-qualified white individuals who were appointed to those positions. Shuford further alleged that, even when promoted to the position of coordinator of student services, he was not paid in accordance with his experience in the postsecondary system, resulting in underpayments of $5,000 per year. In April 1989, Shuford filed an amended complaint in which he sought to represent a class of similarly situated African-Americans seeking relief against all institutions in the postsecondary system. The court certified the following class: “A class of all Black citizens who have been or will be denied employment in or promotion to presidential, full-time faculty and other administrative and supervisory positions covered by salary schedules A, B, C, and D at community, junior and technical colleges in the Alabama System of Postsecondary Education. If a college maintains a full-time administrative or supervisory position which is not covered or defined on the A, B, C, or D salary schedule, such position shall also be included within the scope of the plaintiff class and the coverage of this decree.” Schedule A positions are presidents, B positions are administrators and managers, C positions are non-faculty professionals, and D positions are faculty members. The Shuford class claims that the cause of the employment discrimination is that college presidents in the postsecondary system — the vast majority of whom have historically been white men — are given unbridled discretion in the hiring and promotion of personnel at their institutions. Vacancies at many institutions are not advertised, are left open for extended periods of time, and are filled on a purely subjective basis without reliance on any objective minimum qualifications. The Shuford class alleged that, as a result of the lack of uniform, reviewable employment standards at most institutions, discrimination against African-American professionals was widespread, resulting in the underrepresentation of African-American employees throughout the A, B, C, and D job classes. According to the Shuford class, the discretionary and discriminatory hiring and promotion practices violated provisions of court-ordered faculty and staff desegregation rulings in Lee v. Macon County Bd. of Educ., 267 F.Supp. 458, 472-73, 489-90 (M.D.Ala. 1967) (three-judge court) (per curiam) (affirmative duty to desegregate faculties and staffs), aff'd sub nom. Wallace v. United States, 389 U.S. 215, 88 S.Ct. 415, 19 L.Ed.2d 422 (1967), in Lee v. Macon County Bd. of Educ., 317 F.Supp. 103, 109-110 (M.D.Ala.1970) (three-judge court) (per curiam) (setting goal of 25% African-American faculty and staff employment at trade schools and junior colleges), modified in unrelated part, 453 F.2d 524 (5th Cir.1971), remanded, 468 F.2d 956 (5th Cir.1972), and in a 1975 consent decree in Lee v. Macon County Bd. of Educ., C.A. No. 604-E (M.D.Ala. Aug. 4, 1975). The 1975 consent decree specifically required, among other relief, the establishment of “uniform non-discriminatory written standards and procedures for evaluating applicants for faculty and staff positions at all state junior colleges and technical schools.” Id. at 4. Although the Lee v. Macon orders and consent decree were intended to remedy “segregation” in the postsecondary system, as opposed to “discriminatory employment practices,” the court recognized that the hiring and promotion of faculty and staff on a non-discriminatory basis was a necessary ingredient in disestablishing racially identifiable schools. Lee v. Macon, 267 F.Supp. at 472. Notwithstanding the provisions of the orders and decree, uniform employment standards have not been adopted in the post-secondary system and little progress has been made toward faculty and staff desegregation. For example, between the period of 1980 and 1993, the percentage of African-American faculty members in the postsecondary system only increased from 18% to 19%. The court granted motions to intervene by Connie Johnson and Karen Newton on June 12, 1991, and October 19, 1993, respectively. Johnson and Newton have raised claims of sex-based employment discrimination stemming from the same standardless employment practices at many of the institutions in the postsecondary system. On October 22, 1993, this court certified a class of women to be represented by Johnson and Newton. On March 2, 1994, the court permitted Myra P. Davis and Sheryl B. Threatt, two African-American women, to intervene in this action. Davis and Threatt seek to represent an overlapping class of African-American female professionals employed in the postsecondary system. Their motion for class certification, filed on March 3, 1994, is pending before the court. The claims of these women have not been resolved in the proposed partial decree currently under the court’s consideration and are set for trial at a later time. Shuford and the defendants engaged in discovery until the proposed settlement was reached in November 1993. On November 19, 1993, they filed a joint stipulation for class certification and a motion to approve the proposed partial consent decree. On the same date, the court entered an order certifying the class; tentatively approving the decree, subject to notice and an opportunity for objections at a fairness hearing; approving the form of notice; and requiring the defendants to distribute notice to all employees in the state postsecondary system employed in a position covered by the decree. Several written objections to the proposed decree were filed by non-class-member employees in advance of two fairness hearings scheduled by the court. At the fairness hearings, the Shuford class offered substantial testimonial and statistical evidence to support the relief embodied in the decree. The outline of the consent decree is as follows. The Alabama State Board of Education must adopt a written equal employment and promotion policy for the postsecondary system declaring that “no employee or applicant for employment or promotion, including applicants for presidential, full-time faculty and other administrative and supervisory positions, shall be discriminated against on the basis of any impermissible criterion or characteristic including without limitation race, sex, or age” and that, “to ensure this policy is effectuated in a manner which advances the purposes and goals of this decree, ... all persons participating in selection procedures for professional employees shall take all action necessary to foster Black persons having equal and effective participation in the personnel decision-making process.” The decree sets the following numerical hiring goals. The decree treats presidents (schedule A) separately from other positions and establishes as a goal that .25% of all college presidents shall be African-American by the end of fall quarter 1996. The decree divides the remaining covered positions into three categories: schedules B and Cl; schedules C2 and C3; and schedule D. For these three categories, the decree sets two types of goals, one addressing employment at each institution and the other addressing the postsecondary system as a whole. First, the decree sets a goal for each college that, by the end of fall quarter 1996, the percentage of African-American employees in each of the three categories be equal to at least the number which represents 75% of the percentage of African-Americans in the primary service area of the college. Second, the decree sets sequential goals for the percentage of African-Americans employed system-wide in each of the three categories of positions: 21% by the end of fall quarter 1995; 28% by the end of fall quarter 1997; and 25% by the end of fall quarter 1999. It is important that the goals address both the institutions and the system as a whole because, without targets for each institution, historically African-American institutions would “round-up” the system-wide average allowing historically white institutions to ignore the problem. With the inclusion of institutional-level goals, individual presidents can be held accountable. The goals, however, are not to be construed as quotas and do not require any college to hire an African-American who is not qualified for the position in question. The decree would also establish a statewide bank of African-American applicants and require the chancellor to employ various recruiting techniques to identify and attract qualified African-Americans. College presidents are required to obtain the names of all relevant applicants from the statewide bank when a vacancy arises, and all vacancies must be advertised. Written job descriptions, containing objective selection criteria, are required. A written evaluation must be prepared for each applicant, and all applicants with the relevant objective qualifications must be interviewed. Each college president must appoint a recruitment and selection committee — whose membership shall be at least 40% African-American — to screen and recommend applicants, and the college president must justify his or her decision in writing. A college president may reopen the selection process if he or she deems it necessary to comply with the goals of the decree. Other provisions in the decree require college presidents to follow certain procedures when making lateral transfers, hiring temporary employees, and making lay-offs to ensure that such practices are not used to thwart the goals of the decree. The decree also requires detailed reporting so that counsel for the Shuford class may monitor compliance. The proposed decree includes individual relief for Shuford, who is to be appointed Dean of Extended Services at Jefferson Davis Community College and receive $45,-000 in compensatory damages. Under the terms of the proposed decree, the court will retain jurisdiction over systemic relief in the decree for seven years. The decree will also dismiss, with prejudice, Shuford’s claims against the individual defendants in their individual capacities and the claims under § 2 of the Voting Rights Act of 1965 against all defendants. The parties to the decree have also represented to the court that they would cooperate in the dismissal of the Lee v. Macon orders to the extent that they overlap with the partial decree in this case. II. DISCUSSION In Paradise v. Wells, 686 F.Supp. 1442, 1444-46 (M.D.Ala.1988) (Thompson, J.), this court explained the standards which a court must apply in deciding whether to approve a consent decree. It is well established that voluntary settlement is the preferred means of resolving class action employment discrimination cases. Holmes v. Continental Can Co., 706 F.2d 1144, 1147 (11th Cir.1983); Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157, 1214 (5th Cir.1978), cert. denied, 439 U.S. 1115, 99 S.Ct. 1020, 59 L.Ed.2d 74 (1979). It is equally well established, however, that the settlement process is more susceptible than the adversarial process to certain types of abuse and, as a result, a court has a heavy, independent duty to ensure that the settlement is “fair, adequate, and reasonable.” Pettway, 576 F.2d at 1169. For example, the interests of the class lawyer and the class may diverge, or a majority of the class may wrongfully compromise, betray or “sellout” the interests of a minority. Id. A court also has a duty to ensure that the settlement is not illegal or against public policy. United States v. Alexandria, 614 F.2d 1358, 1362 (5th Cir.1980); Harris v. Graddick, 615 F.Supp. 239, 242 (M.D.Ala.1985) (Thompson, J.). A. Whether the Decree is Fair, Adequate, and Reasonable In determining whether a settlement is fair, adequate, and reasonable, the .obvious first place a court should look is to the views of the class itself. Because the views of the class are so critical, the court must first ensure that the requirement of Rule 23(e) of the Federal Rules of Civil Procedure — that notice of the proposed decree be sent to all class members — has been satisfied. In this case, court-approved notices were distributed individually to all present employees, both class and non-class members, of the 33 institutions in the postsecondary system who occupy positions covered by the proposed partial consent decree. Notices were also posted in conspicuous places at each.institution and addressed generally to all African-Americans who are, have been, or may become candidates for employment in or promotion to the covered positions. The notices described the proposed partial decree, advised recipients that their employment and promotion opportunities might be affected, and included specific information about how to present objections in writing and at the fairness hearings. A fairness hearing was held on December 20, 1993, and a supplemental fairness hearing was held on January 19, 1994, to seek the views of both class and non-class members. The court concludes as a threshold matter that the notice and fairness hearings were adequate to inform the class about the provisions of the proposed partial decree and to solicit and determine their views. The court cannot escape the conclusion that the class is overwhelmingly in support of the proposed partial decree. Of the large number of class members who received notice, only three made their objections known to the court, and these objections were subsequently withdrawn. These three objections came from African-American women who, along with other members of the class of women, opposed the date of implementation of the decree, but did not in any way oppose the extent or nature of the relief embodied in the decree. The women argued that the immediate implementation of the decree would allow the defendants to fill vacant positions with men and thereby prejudice the ability of women to obtain access to these same positions should they be successful at trial. Upon agreement by all parties to a procedure to protect the rights of the women should they prevail on their claims, these objections were withdrawn. In any case, other African-American women were present at the fairness hearing to speak in favor of the proposed decree. Shuford testified that the proposed decree should protect all class members because it requires all institutions to adopt uniform, reviewable employment procedures for the hiring and promotion of all professional personnel. Shuford believes that such an objective selection process will be effective in reducing the underrepresentation of African-. Americans in professional positions in the postsecondary system. The court is also impressed by the testimony of Dr. Yvonne Kennedy, president of Bishop State Community College, a member of the Shuford class who served on a committee of presidents of post-secondary institutions formed during settlement discussions to make recommendations regarding provisions of the consent decree. Kennedy testified on the basis of her work on the committee and experience in the postsecondary system that the proposed decree, with proper monitoring, should be very valuable in opening up opportunities to members of the class. Kennedy believes that recruitment at historically African-American colleges, as required by the decree, should increase the pool of qualified African-American applicants and remove the obstacle mentioned by certain presidents of being unable to locate qualified African-Americans. She further testified that the objective application process called for by the decree, with system-wide controls, will help to bring an end to the current system of purely subjective decisionmaking and help to prevent individual presidents from making any employment decisions on the basis of race. In addressing whether a settlement is fair, adequate, and reasonable a court should also consider the judgment of experienced counsel for the class. Pettway, 576 F.2d at 1215. Counsel for the Shuford class have argued forcefully to the court that the proposed decree is fair, adequate, and reasonable. Class counsel have been intimately involved with the issues in this case since 1989 and spent many months negotiating the proposed decree with the defendants; their views are taken seriously by this court. During discovery, counsel for the Shuford class obtained and analyzed statistical employment data (name, race, sex, and salary of all employees in the postsecondary system), reports required by the Lee v. Macon decree, personnel manuals, personnel records, depositions of defendant college presidents, and minutes of meetings of the Alabama State Board of Education. Class counsel, therefore, conducted sufficient discovery and investigation to enable them to act intelligently in negotiating the terms of the proposed decree and in recommending its approval to the court. The court also takes seriously the views of Solomon Seay, Jr., counsel for the National Education Association (NEA) in the Lee v. Macon litigation and highly respected as one of the best civil rights attorneys in the nation. Although not serving as class counsel in this case, Seay has monitored the faculty and staff hiring in the postsecondary system for well over 20 years in his role as counsel in Lee v. Macon. Seay testified that the proposed decree is a substantial improvement over the 1975 consent decree in Lee v. Macon because it more specifically categorizes levels of employment, has more ambitious recruitment provisions, and calls for more careful supervision and control. He concluded that the decree promises to be of great benefit to class members. The court has no reason to suspect that the proposed decree treats any portion of the class unfairly, especially in light of the dearth of objections filed by class members. There appears to be no overt conflict within the class. Although the proposed decree provides monetary damages only to Shuford, it does not preclude or in any way limit individual suits by other class members for damages against the defendants. The overall impact of the proposed decree will be systemic relief in each of the professional job classes and at each institution. There is no delineation among class members as to the applicability of any provision contained in the proposed decree. As this court wrote in Paradise, “where the settlement provides for structural changes with each class member’s interest in the adequacy of the change being substantially the same, and where there are no conflicts of interests among class members or among definable groups within the class, then the decision to approve the settlement ‘may appropriately be described as an intrinsically ‘class’ decision in which majority sentiments should be given great weight.’" 686 F.Supp. at 1445 (quoting Pettway, 576 F.2d at 1217) (emphasis in original). -• With the above considerations in mind, the court should also independently assess whether the partial consent decree- is fair, adequate, and reasonable. The court agrees with counsel for the Shuford class that the proposed partial decree should be a significant benefit to class members. The decree establishes standardized application and selection procedures to ensure that all applicants are considered on the basis of their qualifications. Under the terms of the decree, membership on recruitment and selection committees at each institution will be 40% African-American; such representation on this committee is likely to ensure fair consideration of African-American applicants. The decree requires affirmative recruitment of qualified African-Americans so that African-Americans are well-represented in the applicant pool. The decree further requires that the names of qualified African-Americans be maintained in a statewide data bank and that institution presidents consider relevant applications whenever a vacancy arises. Furthermore, presidents must justify their employment decisions by written explanation. The court is also impressed that the decree seeks to be exhaustive in closing possible loopholes to the effective implementation of the employment goals by specifically addressing the areas of temporary hiring, transfers, mergers, and consolidations. These provisions will ensure that the specific hiring and promotional goals of the decree will not be undermined by the abuse of certain “secondary” employment practices such as transfers and the use of temporary workers. In light of the above considerations, the court must conclude that the proposed partial consent decree is, at a minimum, fair, adequate, and reasonable. B. Whether the Decree is Legal The court must also address whether the partial consent decree is legal. Five non-class-member employees of the postsecondary system have filed objections, contending that, because of the presence of race-conscious relief, it is not. The court cannot agr.ee with these objectors and concludes upon its own review that the race-conscious relief in the proposed decree is not illegal. The objectors argued that the proposed decree constitutes “reverse discrimination” against non-African-Americans. Specifically, the objectors opposed: (1) the goals for employment of African-Americans in the covered positions, which they termed “quotas”; (2) the 40% African-American membership on the recruitment and selection committee at each college; (3) the affirmative recruitment of qualified African-American applicants; (4) the use of a statewide information bank of qualified African-American applicants; and (5) the requirement that a president justify in writing his or her decision not to select an African-American employee who applies for a lateral transfer. The court must determine whether the race-conscious provisions of the proposed decree are legal under both Title VII and the equal protection clause of the fourteenth amendment. Under the equal protection clause, this court must apply “strict scrutiny” to race-conscious relief voluntarily implemented by a public employer, irrespective of whether the relief is embodied in merely personnel procedures or in a consent decree. Richmond v. J.A. Croson Co., 488 U.S. 469, 503, 506, 109 S.Ct. 706, 727, 728, 102 L.Ed.2d 854 (1989) (majority opinion applies strict scrutiny); see also Peightal v. Metro. Dade County, 940 F.2d 1394, 1399 (11th Cir.1991) (“In Croson, a majority of the Court finally agreed that the constitutionality of [race-conscious relief] must satisfy a strict scrutiny standard”); H.K. Porter Co. v. Metro. Dade County, 975 F.2d 762, 764 (11th Cir.1992) (“if a state or local government has developed a minority set-aside, a court must strictly scrutinize the program”), vacated, 998 F.2d 892 (1993) (opinion vacated upon motion of parties after settlement). The same standard, however, does not apply to race-conscious relief under Title VII. Johnson v. Transportation Agency, 480 U.S. 616, 627 n. 6, 632, 107 S.Ct. 1442, 1449 n. 6, 1452, 94 L.Ed.2d 615 (1987); Peightal, 940 F.2d at 1412-13 n. 2 (Tjoflat, J., dissenting). The standard under Title VII is instead whether the race-conscious relief was designed to “eliminate manifest racial imbalances in traditionally segregated job categories.” Johnson, 480 U.S. at 628, 107 S.Ct. at 1450 (quoting Steelworkers v. Weber, 443 U.S. 193, 197, 99 S.Ct. 2721, 2724, 61 L.Ed.2d 480 (1979)). Because strict scrutiny is the “more restrictive” standard and because the court concludes that the proposed decree passes strict-scrutiny analysis, the court need not analyze the decree separately under the standard of Title VII. Johnson, 480 U.S. at 630 n. 8, 107 S.Ct. at 1451 n. 8. This court now applies strict-scrutiny analysis to the proposed decree. The “purpose of strict scrutiny is to ‘smoke out’ illegitimate uses of race by assuring that the [defendant] is pursuing a goal important enough to warrant use of a highly suspect tool. The test also ensures that the means chosen ‘fit’ this compelling goal so closely that there is little or no possibility that the motive for the classification was illegitimate racial prejudice or stereotype.” Croson, 488 U.S. at 493, 109 S.Ct. at 721. Thus, there are two prongs to the strict scrutiny analysis: first, “any racial classifications ‘must be justified by a compelling governmental interest,’ ” and, second, “the means chosen by the State to effectuate its purpose must be ‘narrowly tailored to the achievement of that goal.’ ” Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 285, 106 S.Ct. 1842; 1852, 90 L.Ed.2d 260 (1986) (plurality opinion) (citations omitted). See also Croson, 488 U.S. at 503, 506, 109 S.Ct. at 727, 728 (majority opinion); United States v. Paradise, 480 U.S. 149, 167, 107. S.Ct. 1053, 1064, 94. L.Ed.2d 203 (1987) (plurality opinion). Importantly, the Supreme Court has indicated that the government “unquestionably has a compelling interest in remedying past and present discrimination by a state actor.” Id. See also Wygant, 476 U.S. at 274, 106 S:Ct. at 1847 (“showing of prior discrimination by the governmental unit involved” justifies race-consciousness). The race-conscious relief before the court, therefore, is “lawful if it represents a ‘narrowly tailored’ effort to remedy past ... discrimination against” African-Americans in Alabama’s postsecondary educational system. Stuart v. Roache, 951 F.2d 446, 449 (1st Cir.1991). 1. Compelling State Interest Whether race-conscious relief serves a remedial purpose with respect to past discrimination is an evidentiary issue. The court need not make “formal findings” of discrimination; rather, there must be a “strong basis in evidence” for the conclusion that the decree remedies past discrimination. Croson, 488 U.S. at 500, 109 S.Ct. at 725 (quoting Wygant, 476 U.S. at 277, 106 S.Ct. at 1849); see also Stuart, 951 F.2d at 450. The requisite evidentiary basis has also been described as “a prima facie case of a constitutional or statutory violation.” Croson, 488 U.S. at 500, 109 S.Ct. at 72. See also Brunet v. City of Columbus, 1 F.3d 390, 406 (6th Cir.1993) (prima facie case sufficient); Stuart, 951 F.2d at 450 (same). Therefore, “less evidence is necessary to justify an affirmative action plan than is necessary to prevail on an individual class action claim of intentional discrimination.” Brunet, 1 F.3d at 406. Societal discrimination alone, however, is not a sufficient justification for race^ conscious relief; there must be “some showing of prior discrimination by the governmental unit involved before allowing limited use of racial classifications in order to remedy such discrimination.” Wygant, 476 U.S. at 274, 106 S.Ct. at 1847 (plurality). In determining whether the requisite evidentiary basis for race-conscious relief exists, the court must therefore decide, if there is sufficient evidence to establish a prima facie case of racial discrimination. The Shuford class alleges a pattern and practice of intentional disparate treatment of African-Americans seeking employment or promotion in the postsecondary system. To prove a system-wide pattern or practice of discrimination, an employee must prove “more than the mere occurrence of isolated or ‘accidental’ or sporadic discriminatory acts,” but rather must “establish by a preponderance of the evidence that racial discrimination was the company’s standard operating procedure — the regular rather than the unusual practice.” International Brotherhood of Teamsters v. United States, 431 U.S. 324, 336, 97 S.Ct. 1843, 1855, 52 L.Ed.2d 396 (1977). The Eleventh Circuit has noted that “great uncertainty exists as to the precise elements of [a] prima facie ease”. of class-wide disparate treatment, Perryman v. Johnson Products Co., 698 F.2d 1138, 1143 (11th Cir.1983); “the neat pattern of shifting inferences provided by McDonnell Douglas [Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973),] is not directly applicable to class actions.” Id. Courts, therefore, avoid any “structural analysis” and consider “the evidence as a whole to determine whether the plaintiff class has established ‘by a preponderance of the evidence that ... discrimination was the [defendants’], standard operating procedure.’ ” Id. (quoting Teamsters, 431 U.S. at 336, 97 S.Ct. at 1855); see also Griffin v. Carlin, 755 F.2d 1516, 1525 (11th Cir.1985). A prima facie case of class-wide disparate treatment is typically established by a combination of statistics and anecdotal evidence. Griffin, 755 F.2d at 1525; Perryman, 698 F.2d at 1143-44. In this case, the Shuford class has offered evidence of: historical discrimination by the defendants, as chronicled through the history of the litigation in Lee v. Macon; anecdotal instances of intentional discrimination against Shuford and other African-Americans in employment, promotions, and salaries; and the underrepresentation of African-Americans in the covered positions as demonstrated by statistical data. The court reviews Ijhis evidence below and finds that it provides a strong basis to show racial discrimination in employment in the postsecondary system, and establishes a prima facie ease of such discrimination. a. Historical Evidence Although evidence of historical discrimination by the defendants may not be sufficient by itself to justify race-conscious relief, it is fully appropriate to consider such historical evidence, especially where the historical discrimination has yet to be remedied. See, e.g., Brunet, 1 F.3d at 408-09. This court has made ample findings relating to the segregation of faculty and staff in Alabama’s public system of education, including the postsecondary system, throughout the Lee v. Macon litigation; appallingly, little or no progress has been made. The court takes judicial notice of these extensive findings, and reviews them only briefly here. In 1967, this court wrote that the Alabama State Board of Education and others have “endeavored to thwart and, with considerable success, have thwarted efforts toward implementation of the constitutional requirement to eliminate faculty and staff segregation in the public school system of Alabama.” Lee v. Macon, 267 F.Supp. at 473. In order to eliminate racially identifiable faculties and staffs, the court ordered that “Race or color will not be a factor in the hiring assignment, reassignment, promotion, demotion, or dismissal of .teachers and other professional staff members ... except that race will be taken into account for the purpose of correcting the effect of the past segregated assignment of teachers in the dual system.” Id. at 489. The State Board of Education was ordered to direct postsecondary institutions to “recruit, hire, and assign teachers so as to desegregate faculty and to accomplish some faculty desegregation in each” postsecondary institution by September 1967. Id. at 484. In 1970, after making findings regarding the continued segregation of faculty, staff, and students in the postsecondary system, the court ordered further relief. The court today is struck by the similarity of the goals of the 1970 order and the proposed decree currently under consideration and saddened by the ongoing need for essentially the same relief. The court in 1970 ordered that the defendants: “assign the teaching staff and other staff members so that the ratio of Negro to white teachers and other staff members in each 'of the junior colleges and trade schools in the State of Alabama is substantially the same as such ratio is for the Negro and white population in the State of Alabama. This means that, effective September 1971, a minimum of 25 percent of the- teachers and other staff members at each junior college and trade school will be Negroes.” Lee v. Macon, 317 F.Supp. at 109. The court further ordered that dismissals must be made “on the basis of objective and reasonable nondiscriminatory standards” and that resulting vacancies must be filled by a person of the same race as the person dismissed. Id. at 109-10. Finally, the court ordered direct exchange of faculty members between Jefferson State Junior College and Wenonah State Junior College, and between Mobile State Junior College (now Bishop State) and James H. Faulkner Junior College. Id. at 111. Dr. Yvonne Kennedy, now president of Bishop State, participated in the exchange program in 1970 between Bishop State, historically African-American, and Faulkner Junior, historically white. She described the atmosphere at Faulkner Junior as “extremely hostile.” African-American teachers transferred to Faulkner Junior were told to eat lunch in their classrooms as opposed to in the cafeteria; it was the institution’s policy that the African-American professors were “not going to be seen mixing.” She testified that Faulkner Junior sent its least qualified teachers to Bishop State. Kennedy did not stay at Faulkner Junior more than an academic quarter, and she believed that the exchange failed "within a year. She further ■reported that new hirees at Bishop State were white, in compliance with the Lee v. Macon order, but that Faulkner Junior continued to hire whites almost exclusively; those African-Americans hired at Faulkner Junior did not receive tenure. “No substantial progress” was made in faculty and staff desegregation between 1970 and 1975. In 1975, NEA, as plaintiff-intervenor in Lee v. Macon, filed a motion for further relief alleging that “the defendants have failed to promulgate and utilize objective and reasonable non-discriminatory criteria to be applied to personnel actions throughout the entire state junior college and technical school system since the amended August 14, 1970 desegregation Order.” Lee v. Macon, C.A. No. 604-E (Aug. 4, 1975), at 1. This aspect of NEA’s 1975 motion is almost identical to the allegations of the Shuford class. Under the terms of the 1975 consent decree settling NEA’s motion for further relief, the defendants agreed, among other provisions, to engage in specified affirmative recruitment measures; adopt uniform, non-discriminatory written standards and procedures for hiring, promotion, transfers, and dismissal of faculty and staff; and maintain written records of employment transactions. The historical evidence is significant to the court for two reasons. First, as stated earlier, although Lee v. Macon was a desegregation ease as opposed to an employment discrimination case, it is abundantly clear from the historical evidence that the two forms of discrimination are overlapping and reinforcing. That is, the segregation of faculty, staff, and students in the postsecondary system was accomplished and perpetuated in large part by racial discrimination in employment. Although the findings in Lee v. Macon are perhaps too distant to serve alone as a compelling state purpose in 1994, the insubstantial progress toward the goals of the orders and consent decree after 27 years (as shown by the statistics reviewed below) leads the court to conclude that the discrimination is ongoing into the present; in other words, the discrimination is living, and not merely historical. The court finds the historical evidence to be significant for a second reason: it shows a pattern of intransigence on the part of the state defendants who have refused to implement the Lee v. Macon orders and decree effectively. The decree, in the words of the Supreme Court, is “supported not only by the governmental interest in eradicating [the defendants’] discriminatory practices, it is also supported by the societal interest in compliance with the judgments of federal courts.” Paradise, 480 U.S. at 170, 107 S.Ct. at 1066 (quoting Sheet Metal Workers v. EEOC, 478 U.S. 421, 485, 106 S.Ct. 3019, 3055, 92 L.Ed.2d 344 (1986) (Powell, J., concurring in part and concurring in judgment)). As in Paradise, defendants in this ease have resisted the implementation of both court-ordered and court-approved relief; as shown by the deposition testimony, defendants have failed to implement uniform, objective criteria in .their employment practices. Their resistance provides an additional basis to conclude that the race-conscious provisions of the decree serve a compelling purpose, b. Anecdotal Evidence “In most class actions alleging employment discrimination, a vital part of the plaintiffs’ case is evidence that individual class members, particularly the named plaintiffs, were illegally discriminated against in various facets of the employment process.” Perryman, 698 F.2d at 1143. Evidence that class members have been the victims of individual acts of discrimination can provide “substantial, and perhaps determinative” support for a pattern or practice of discrimination. Id. The Shuford class has presented evidence of several acts of discrimination, and the court determines that this evidence establishes a prima facie case of discrimination against individual class members. Although the McDonnell Douglas factors, used to analyze whether an individual plaintiff has established a prima facie ease of employment discrimination, are not applicable in determining whether the Shuford class has established its prima facie case of class-wide discrimination, the court’s consideration of the anecdotal evidence of individual discrimination is guided by these factors. An individual’s prima facie case is established if the plaintiff shows that he or she belongs to a protected group; applied for and was qualified for a job for which the employer was seeking applicants; was rejected despite his or her qualifications; and after the rejection, the position remained open or was filled by a person with equal or lesser qualifications who is not a member of the protected class. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. The evidence reflects that Shuford and other African-Americans were discriminated against in employment because of their race. Shuford has been employed in the postsecondary system since 1969. He received his B.S. degree in counseling and vocational agriculture from Alabama A & M University in 1969 and his master’s degree from Alabama State University in 1978. He also received certification in vocational technical education from Auburn University. In 1969, Shuford began his employment with Atmore State Technical College. In 1974, Governor George C. Wallace appointed C.P. Floyd, a white male, as a coordinator at Atmore State. Floyd had no knowledge of the position and was trained by Shuford for six months. In 1975, the State Board of Education appointed Malcolm Jones as president of Atmore State; within one year, Floyd was promoted to dean of instruction. The dean of instruction position was not advertised. Shuford applied for the coordinator position vacated by Floyd, but was told by Jones that the position would not be filled. Subsequently, Shuford was required to orient' Curtis Fayard, a white male, into the student services department. After receiving training from Shuford, Fayard was promoted to the coordinator’s position left open by Floyd and which Shuford was told would not be filled. The position was not advertised and Shuford’learned of Fayard’s promotion only when it was announced by Jones at a faculty meeting. After Shuford filed a grievance with the Alabama Education Association, Jones called Shuford into his office and told him he would promote him to a coordinator position as well. At the time Shuford received the position, he had twelve years experience. Notwithstanding Shuford’s experience, Jones placed Shuford on the C-salary schedule for a coordinator with six years of experience, and Shuford received the same pay as Fa-yard despite his additional experience. Shuford would have earned $5,000 more annually had he been properly placed on the salary schedule. The positions of dean of students and dean of instruction remained vacant at Atmore State for more than ten years. In the early 1980s, instead of filling the positions, Jones hired A1 Baggett, a white male with a B.A. degree in accounting, • and announced at a faculty meeting that Baggett would serve as business manager, dean of students, and dean of instruction. Baggett had no experience in secondary or postseeondary education. In 1985, Baggett resigned and Will Chapman, a white male, was hired as business manager. Chapman had a B.A. degree in accounting and no previous experience in secondary or postsecondary education. Prior to being hired at Atmore State, Chapman was employed in a family-owned hardware store. Again, Jones announced at a faculty meeting that Chapman would be business manager, dean of students, and dean of instruction. Shuford had applied for these positions repeatedly and was told each time that the positions would not be filled. In 1988, Tommie Booth, a white male who was president of Brewer State Junior College, was asked to resign by Chancellor Gainous. A short time later, Jones hired Booth as a grant writer. Again, the position was not advertised; instead, Jones announced at a faculty meeting that the position of grant writer had been created and filled. The evidence further reflected that on several occasions African-Americans were terminated at the end of one school year ostensibly due to a lack of funding. When funds became available, however, white employees were hired into the same positions. For example, John Allen and Ernest Marvin, African-American males, were hired as adult basic education instructors; they were released after one year of employment due to an alleged lack of funding and replaced by white males when funds became available. Bobby Allen, an African-American male who graduated from Carver Technical College, was hired as a barbering instructor, but released after one year. When funds became available, Jones hired a white male who was a self-taught barber. Allen owned and operated a barbering business at the time the white male was hired to fill the position from which he was terminated. There was also individual discrimination at institutions other than Atmore State. For example, Ulysses McBride, an African-American male with a Ph.D. who was a faculty member at Faulkner Junior, applied for the presidency at Faulkner Junior; Gary Branch, a white male with only a master’s degree, was hired instead. The above instances establish a prima facie case of discrimination against individual class members. This evidence is probative not only of individual discrimination, but also contributes to Shuford’s “strong basis in evidence” of class-wide disparate treatment. These individual instances illuminate both the historical evidence and statistical evidence submitted by the plaintiff class, c. Statistical Evidence In Croson, the Supreme Court held that a statistical comparison between the employer’s work force and the composition of the relevant labor pool is probative of a pattern of discrimination. The Court acknowledged that “gross statistical disparities” may alone prove a prima facie case of discrimination, but held that “where special qualifications are necessary, the relevant statistical pool for purposes of demonstrating discriminatory exclusion must be the number of minorities qualified to undertake the particular task.” 488 U.S. at 501, 109 S.Ct. at 725-26. The covered positions in the decree — presidents, administrators, faculty members — require special qualifications, at least to some degree. The parties to the decree have presented statistics of African-American employment levels in the covered positions, but are unable to provide a basis from which to make the relevant statistical comparison required by Croson. However, the Shuford class cannot be faulted for this failure; there is no available evidence from which it could establish the percentage of African-Americans in the Alabama workforce who were “qualified” to be employed in the covered positions. The failure is indigenous in cases such as this, where persons were being hired and promoted without regard to any objective measure of qualifications. That is, although some “special qualifications” were required — such that a statistical comparison with the general population remains inappropriate — it is impossible to. discern what, if any, specific qualifications were required for employment in each of the covered positions. Because even the minimum qualifications cannot be identified, neither can the relevant labor pool. Admittedly, the covered positions do require a certain degree of education; but the defendants do not appear to have adhered to even these minimum educational requirements, such that the court cannot adopt as a proxy for the relevant labor pool the percentage of African-Americans in Alabama with a certain college or graduate-level degree. As a result, the defendants’ conscious failure to establish cognizable and reviewable employment standards has not only violated prior court orders and fostered the defendants’ racially discriminatory practices, it has had the further effect of frustrating the Shuford class’s ability to establish the “gross statistical disparity” envisioned by Croson. It would be not only illogical but unfair that Croson could be used as a shield behind which a defendant who had engaged in an unlawful discriminatory practice could be relieved, because of the nature of the discriminatory practice, of having to provide full and effective relief. Surely, the Croson Court did not envision that its requirement for establishing gross-statistical-disparity would be turned on its head to serve as an absolute barrier to effective relief in cases where an employer had failed to follow identifiable minimum qualifications. Fortunately, a closer reading of Croson does not leave the Shuford class with such an unjust result. It is therefore important to clarify what Croson did not hold. The Court in Croson did not hold that a statistical comparison between those employed and those in the qualified labor pool was required to establish a prima facie case of prior discrimination; rather, the Court held that only that type of comparison could be relied on exclusively. 488 U.S. at 501, 109 S.Ct. at 725-26. The Court did not shut the door to establishing the necessary “strong basis in evidence” by other means, both statistical and non-statistical. In addition to the statistical comparison with the general population rejected by the Supreme Court, the district court in Croson had also relied on four other bases to show prior discrimination. The four other bases were: (1) that the race-conscious provisions in the ordinance professed to be “remedial”; (2) proponents of the set-aside for minority enterprises had expressed opinions that there had been discrimination; (3) few minority contractors belonged to contractors’ associations; and (4) Congress had made national findings of discrimination in the construction industry. Croson, 488 U.S. at 499, 109 S.Ct. at 725. The Supreme Court concluded that these four bases of prior discrimination, viewed “singly or together,” were too general and non-specific — that is, unsupported by specifically identifiable and provable facts — to provide a “strong basis in evidence” of prior discrimination. Id. at 499-500, 109 S.Ct. at 725. As to the first factor, the Court concluded that “the mere recitation of a ‘benign’ or legitimate purpose for a racial classification is entitled to little or no weight.” Id. at 500, 109 S.Ct. at 725. As to the second factor, the Court refused to give weight to the “views” of certain proponents of the set-aside that there had been past discrimination and wrote that race does not become “a legitimate proxy for a particular condition merely by declaring that the condition exists.” Id. at 501, 109 S.Ct. at 725. As to the third factor, the Court concluded that there are “numerous explanations for [the] dearth of minority participation [in contractors’ associations], including past societal discrimination in education and economic opportunities as well as both black and white career and entrepreneurial choices.” Id. at 503, 109 S.Ct. at 727. Finally, as to the fourth factor, the court found the nationwide findings of discrimination in the construction industry to be of little relevance because, in making such findings, “Congress was exercising its powers under § 5 of the Fourteenth Amendment....” Id. at 504, 109 S.Ct. at 727. “States and their subdivisions,” however, “must identify that discrimination, public or private, with some specificity before they may use race-conscious relief.” Id. Here, by contrast, in support of its prima facie case, the Shuford class has provided both anecdotal and historical evidence identifying in detail a substantial body of facts reflecting that racial discrimination in Alabama’s postsecondary system is manifest, pervasive, and deeply intransigent; the district court in Croson had no similarly reliable and detailed evidence of prior discrimination and certainly did not have the historical pattern of discrimination present here. Therefore, even without statistical evidence, the Shuford class has more than met its burden under Croson. Nevertheless, the Shuford class has presented statistical evidence, albeit different from that considered in Croson, which is probative of past discrimination. First, segregation persists among the faculties and professional staffs of the postsecondary institutions, resulting in gross underrepresentation of African-Americans at certain institutions. Based on 1993 figures, the faculties and professional staffs at many of the post-secondary institutions remain racially identifiable. For example, of 30 employees in covered positions at the Alabama Aviation Institute, only one is African-American. At Lawson State Community College, by contrast, of 81 employees in covered positions, only five are white. At the Hanceville campus of Wallace Community College, two African-Americans work with 138 whites in covered positions. At Wallace Community College in Dothan, eight African-Americans work with 128 whites in covered positions. Furthermore, according to the 1993 data, there are eight institutions that do not employ any African-Americans in the A, B, and C salary levels, and nine institutions that employ only one African-American. Ten institutions employ no African-Americans in the D salary level. System-wide, 48.8% of the African-Americans employed in the B and C salary levels are employed in five institutions; 54.9% of African-Americans employed in the D salary level are employed at the same five institutions. The concentration of African-Americans at certain institutions, and their relative exclusion at other institutions, is probative of disparate treatment on the basis of race. The second conclusion the court may draw from the statistics is that there has been only minuscule progress in complying with the faculty and- staff desegregation provisions of the Lee v. Macon decree. Such slow progress, when viewed in tandem with anecdotal evidence that whites were hired for positions over African-American applicants with better qualifications, is probative of class-wide disparate treatment. In 1970, the State Board of Education was instructed to achieve 25% African-American employment on faculties and staffs of the postsecondary institutions. Twenty-four years later, African-American employment in each of the salary schedules covered by the decree is significantly less than 25%. The statistic's for African-American ' employment in 1993 are as follows: 15.1% of presidents, 17.8% Of deans and business managers, 22.2% of non-faculty professionals, and 19.0% of faculty members. Reports filed by the defendants pursuant to the Lee v. Macon decree show how little progress has been made: in 1980, 18% of faculty members were African-American; by 1993, only-19% were African-American. This one-percent increase — only 82 additional African-American teachers system-wide over 13-years — is probative of the defendants’ resistance and discriminatory employment practices. Whether, in light of Croson, the court may rely exclusively on these employment statistics is an issue that need not be reached because of the substantial historical and anecdotal evidence provided. Together, the historical, anecdotal, and statistical evidence paints an expansive and detailed picture of racial discrimination from which the court cannot avert its eyes. The court therefore concludes that there is a “strong basis in evidence” of prior discrimination establishing a prima facie case of class-wide disparate treatment on the basis of race. This discrimination provides the necessary “compelling interest” to allow the defendants to employ race-conscious relief as a remedy. The court now turns to the question of whether the specific race-conscious relief in the proposed partial decree is narrowly tailored to achieve that compelling remedial purpose. 2. Narrowly Tailored In Paradise, the Supreme Court set forth several factors to determine whether race-conscious relief is narrowly tailored: “the necessity for the relief and the efficacy of alternative remedies; the flexibility and duration of the relief, including the availability of waiver provisions; the relationship of the numerical goals to the relevant labor market; and the impact of the relief on the rights of third parties.” 480 U.S. at 171, 107 S.Ct. at 1066 (citations omitted). The Court has recognized that “the choice of remedies to redress racial discrimination is ‘a balancing process left, within appropriate constitutional or statutory limits, to the sound discretion of the trial court.’ ” Id. at 184, 107 S.Ct. at 1073 (quoting Fullilove v. Klutznick, 448 U.S. 448, 508, 100 S.Ct. 2758, 2790, 65 L.Ed.2d 902 (1980) (Powell, J., concurring)). a. Necessity and Lack of Alternative Remedies The court must determine that the parties considered “the use of race-neutral means” to meet the remedial goals, Croson, 488 U.S. at 507, -109 S.Ct. at 729, and that they found the race-neutral options to be insufficient. Paradise, 480 U.S. at 172, 107 S.Ct. at 1053. The defendants’ continued use of discriminatory, subjective, and non-uniform selection criteria, more than 20 years after such practices were enjoined, convinces the court that the relief embodied in the decree is necessary. Most of the remedies embodied in the decree — including the 25% goal — can be found in the history of the Lee v. Macon orders and decree. Throughout this history, defendants were under an obligation to employ race-neutral, objective selection criteria, and they have failed to comply. The proposed decree seeks to do little more than be effective and comprehensive in implementing the Lee v. Macon goals and remedies. Importantly, the court also finds that “alternative remedies” have been not only tried without success for many years, but also that they are built in to the proposed decree. Although certain race-conscious relief comes into play immediately — for example, 40% African-American membership on the recruitment and selection committee, affirmative recruiting — the “affirmative action” envisioned by the employment goals need not ever be employed. The proposed decree is designed such that the goals of the decree will be achieved through intensified recruitment, the availability of qualified African-American candidates in the statewide bank, and the use of objective, race-neutral selection procedures and criteria. It is only when the goals are not reached by these means that any affirmative action would become necessary, and even then the decree only permits presidents to hire qualified African-American candidates. The use of race-neutral remedies in conjunction with goals has been found to increase narrow tailoring by maximizing the prospect for achieving the goals in whole or in part without any need for additional race-preferential relief. Cone Corp v. Hillsborough County, 908 F.2d 908, 916 n. 11 (11th Cir.1990); Associated General Contractors, Inc. v. Coalition for Economic Equity, 950 F.2d 1401, 1416-17 (9th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1670, 118 L.Ed.2d 390 (1992). The proposed decree is narrowly tailored to allow race-neutral means to go as far as possible in reaching the goals before affirmative action is used, unlike the decrees approved in Paradise and Howard v. McLucas, 871 F.2d 1000, 1007-08 (11th Cir.), cert. denied, 493 U.S. 1002, 110 S.Ct. 560, 107 L.Ed.2d 555 (1989), which required that separate race-conscious eligibility lists be prepared and used for every other vacancy that was filled. See also Jansen v. Cincinnati, 977 F.2d 238, 243 (6th Cir.1992) (approving use of “dual lists” in which 40% of vacancies are filled from “minority list” and 60% from “majority list”), cert, denied, — U.S. -, 113 S.Ct. 2344, 124 L.Ed.2d 254 (1993). In conclusion, the parties considered race-neutral means, employed race-neutral means in the past without success, and yet still reimpose race-neutral requirements as the front-line and principal means of achieving the goals in the proposed decree; in this context, race-conscious relief is necessary and appropriate. b. • Flexibility and Duration of Relief The proposed decree is both temporary and flexible. The decree has a duration of seven years, which may be extended for good cause by the court; Seven years is sufficiently temporary, in that it serves as a remedy for past discrimination and not as an attempt to maintain racial balance in perpetuity. The mere possibility of extension does not transform this temporary decree into a permanent one. Stuart, 951 F.2d at 454-55. “The temporary nature of this remedy ensures that a race-conscious program will not last longer than the discriminatory effects it is designed to eliminate.” Fullilove, 448 U.S. at 513, 100 S.Ct. at 2792. The race-conscious provisions of the decree are sufficiently flexible. The decree’s employment goals are appropriately characteriz