Full opinion text
MEMORANDUM OPINION MYRON H. THOMPSON, Chief Judge. These two longstanding lawsuits — in which the court previously found that the Montgomery County Sheriffs Department had discriminated against its African-American deputies and its female deputies and applicants^ — are before the court again, this time on a claim by a group of white male deputies that the department promoted black deputies instead of white deputies to the rank of “law enforcement sergeant” on the basis of race, in violation of federal law. This group, known in this litigation as the “Dodson intervenors,” has named the following as defendants: the Montgomery County Sheriffs Department; the Montgomery County Commission; the Montgomery City-County Personnel Board; the Montgomery County Commissioners in their official capacities; and Sheriff Dan Jones and Chief Deputy Calvin Huggins in their official capacities. The Dodson intervenors charge that the defendants violated the following: the fourteenth amendment to the United States Constitution as enforced through 42 U.S.C.A. § 1983; 42 U.S.C.A. § 1981; Title VI of the Civil Rights Act of 1964, as amended 42 U.S.C.A. §§ 2000d through 2000d-4; Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.A. §§ 2000e through 2000e-17; and the Omnibus Crime Control and Safe Streets Act of 1968, 42 U.S.C.A. §§ 3711-3797. The Dodson intervenors have invoked the jurisdiction of the court based on 28 U.S.C.A. § 1343. The defendants have raised a number of defenses, including one that the promotion of the black deputies was required by a valid consent decree. These two lawsuits are now before the court on motions for summary judgment filed by both the Dodson intervenors and the defendants. The Dodson intervenors have also moved for reconsideration of the denial of their motion to amend their eomplaint-inintervéntion to include individual capacity claims against former Sheriff Mac Sim Butler and Chief Deputy Huggins. For the reasons set forth below, the Dodson intervenors’ motions for summary judgment and motion to reconsider will be denied, and the defendants’ motions for summary judgment will be granted. I. BACKGROUND A. Sims and Williams Litigation This litigation represents the consolidation of two class action lawsuits: in one, initiated in 1972, a class of black employees sought relief from the Montgomery County Sheriffs Department’s racially discriminatory employment practices, Sims v. Montgomery County Comm’n, civil action no. 3708-N (M.D.Ala.); and, in the other, filed ten years later, a class of female employees and applicants for employment charged the department with sex discrimination, Williams v. Montgomery County Sheriff’s Dept., civil action no. 82-T-717-N (M.D.Ala.). In the Sims litigation in 1973, the court approved and entered a consent decree requiring that the Montgomery County Commission conduct “all hiring and personnel practices, programs and procedures on a non-discriminatory basis without regard to race, color, creed or national origin.” Civil action no. 3708-N (M.D.Ala. March 22, 1973) (plan attached at 1, ¶ 1). The 1973 Sims decree further provides that, unless approved or “validated” under standards and procedures set out in the decree, a selection procedure can be used only if it did “not have a disproportionate detrimental impact upon minority applicants.” Id. (plan attached at 6, ¶ 6). The decree provides that “validation” shall be based on a “study ... conducted, pursuant to the Equal Employment Opportunity Guidelines on Employee Selection Procedures, 35 Federal Register, pp. 12333-12336 (August 1,1970), which shows that the tests Defendants desire to use accurately predict job performance, and that the education standards relate to the ability of the applicants to do the job.” Id. Fifteen years later, in 1988, four African-American officers, collectively called the “Scott intervenors,” moved to intervene in the Sims litigation, charging that the Montgomery County Sheriffs Department was continuing to discriminate against black employees in violation of the 1973 Sims decree. The court certified a plaintiff-intervenor class of all “black persons who are past, current, and future employees of the Montgomery County Sheriffs Department.” Civil action no. 3708-N (M.DAla. Nov. 2, 1988). As a result of this round of litigation, the court on November 27, 1990, entered a permanent injunction prohibiting the department from further racial discrimination and requiring the department to change its personnel procedures. Sims v. Montgomery County Comm’n, 766 F.Supp. 1052, 1102-03 (M.D.Ala.1990). In an accompanying judgment and injunction, the court required that the department fashion, by an established deadline, new, nondiscriminatory procedures for promotion of non-blacks and blacks. Civil action nos. 3708-N & 82-T-717-N (M.D.Ala. Nov. 27, 1990). In the Williams litigation in 1983, the court certified a plaintiff class of “all past, present, and future female employees of the Montgomery County Sheriffs Department.” Johnson v. Montgomery County Sheriffs Dept., 99 F.R.D. 562, 566 (M.D.Ala.1983). Two years later, in 1985, as a result of this litigation, the court approved and entered a consent decree prohibiting the department from discriminating against its female officers and requiring that it adopt new, nondiseriminatory policies with regard to promotions, transfers, and job and shift assignments. Johnson v. Montgomery County Sheriff's Dept., 604 F.Supp. 1346 (M.D.Ala.1985). The department agreed to develop promotion procedures that conform with the “1978 Uniform Guidelines [on Employee Selection Procedures,] 29 CFR § 1607 et seq.,” id. at 1354, and that “would have little or no adverse impact on women seeking to be ... promoted to ranking positions.” Id. The 1985 decree provides that “Adverse impact will be measured by the ‘four fifths rule’ set forth in § 4(D) of the Uniform Guidelines.” Id. at 1355. In 1986, the Williams class filed a request for additional relief. In a 1986 supplemental consent decree resolving the request, the department agreed to hire an independent professional consultant, mutually selected by the parties, to develop temporary and eventually permanent promotion procedures for all ranks as required by the 1985 decree. Civil action no. 82-T-717-N, at 5 (M.DAla. July 24, 1986). In 1988, the Williams class charged that the department was continuing to discriminate against women. As a result of this round of litigation, the court on November 27, 1990, found that the department had discriminated and retaliated against female employees, and entered a permanent injunction prohibiting the department and its officers from engaging in further sexual discrimination and retaliation, and requiring the department to take affirmative and immediate steps to address sexual harassment and discrimination within the department. Sims, 766 F.Supp. at 1079-80. In an accompanying judgment and injunction, the court also required that the department fashion, by an established deadline, new, nondiscriminatory procedures for promotion of men and women. Civil action nos. 3708-N & 82-T-717-N (M.D.Ala. Nov. 27, 1990). In 1990, the court permitted a group of white male deputies, collectively called the “Dodson intervenors,” to intervene in this litigation. Civil action nos. 3708-N & 82-T-717-N (M.D.Ala. Nov. 27, 1990). In 1992, the court certified the Dodson intervenors as a class for the purpose of challenging promotion procedures within the department. Id. (May 18, 1992). In 1992, as required by the court in its judgment and injunction entered on November 27, 1990, the department submitted new, nondiscriminatory interim promotion procedures, and these procedures were approved by the court. Civil action nos. 3708-N & 82-T-717-N (M.D.Ala. Jan. 13, 1992). In 1994, the department submitted new, nondiscriminatory permanent promotion procedures, and these procedures were approved by the court. Id. (M.D.Ala. Dec. 7, 1994). B. Challenge to the 1988 Promotions The Montgomery County Sheriffs Department is split into two divisions: “law enforcement” and “corrections.” The corrections division is responsible for the operation of the Montgomery County Detention Center, also known as the county jail; the law enforcement division is also known as the field division. At issue in the current phase of this litigation are the 1988 promotions to sergeant in the law enforcement division. In August 1986, as required by the 1986 supplemental consent decree in Williams, the Montgomery County Commission hired the Center for Business and Economic Development of Auburn University at Montgomery as an independent professional consultant. The Center was instructed to conduct analyses of the various jobs in the Sheriffs Department and to develop selection procedures for those jobs. Under the supervision of the Center’s director, Dr. John G. Veres, the Center developed interim selection procedures for various ranks, including law enforcement sergeant, and later developed permanent procedures for each of those ranks. The procedure used for making promotion to sergeant in 1988 was an interim one, used only in that year. The procedure consisted of two components: a multiple-choice written examination and a structured oral interview. In March 1988, all candidates applying for promotion to law enforcement sergeant met with representatives of the Center and the Montgomery City-County Personnel Board to discuss test-taking strategies and the overall testing process. The Dodson intervenors contend that, at the meeting, they were told that a score of 58 on the written test would move them on to the structured oral interview. They also allege that they were told that the oral interview would form the sole basis for their performance ranking. On March 26, representatives of the City-County Personnel Board administered the sergeant’s written examination. Among the 53 candidates who took the test, there were 40 whites (34 white males and six white females) and 13 blacks (seven black males and six black females). After the examination, the Center recommended that 24 candidates be referred to sit for the structured oral interview: 18 whites (14 white males and four white females) and six blacks (four black males and two black females). Five of the nine Dodson intervenors were referred. One white male candidate who was referred chose to drop out of the selection process, leaving only 23. The Dodson intervenors allege that the Center’s decision to limit to 24 the number of persons to advance to the oral interview was arbitrary. According to Dr. Veres, however, the decision was based on a number of concerns, including security of the interview process if the interviews took more than one day, standardization of questions among interviewers, and limiting the number of interviewees to those with a realistic chance of being promoted. He stated that it was unlikely that a deputy who scored poorly on the written test would score well on the interview or score well enough to surpass others who scored higher on the written examination. In recommending candidates for the oral interview, the Center did, however, make two separate lists of candidates, one composed of black candidates and one of white candidates. The Center advanced an equal percentage of the highest-ranking candidates by race based on their makeup in the initial pool of applicants. As a result, whites who scored 96 or higher on the written exam were referred for oral interview, and blacks who scored 80 or higher were referred. The Center prepared the separate lists to avoid “adverse impact” on black candidates, which would have resulted if the top 24 scoring candidates on the written examination, who were all whites, had been referred for oral interview. According to the defendants, this adjustment to avoid adverse racial impact was necessary to comply with the 1973 Sims consent decree. In the late spring or early summer of 1987, some of the defendants and their counsel met with Dr. Veres to discuss compliance with the 1985 Williams consent decree. One of the attorneys brought to Dr. Veres’s attention the existence of the 1973 Sims decree; the attorney expressed concern that all promotions be made in compliance with both the Williams and the Sims decree. Dr. Veres was unaware of the Sims decree. As stated, the Williams decree required that the department develop promotion procedures that conform with the “1978 Uniform Guidelines [on Employee Selection Procedures,] 29 CFR § 1607 et seq.,” Johnson, 604 F.Supp. at 1354, and that “would have little or no adverse impact on women seeking to be ... promoted to ranking positions.” Id. The 1985 decree provides that “Adverse impact will be measured by the ‘four fifths rule’ set forth in § 4(D) of the Uniform Guidelines.” Id. at 1355. The Uniform Guidelines provide that selection procedures may be validated based on “criterion-related validity studies, content-related validity studies, or construct-related validity studies.” 29 C.F.R. § 1607.5. In contrast, the Sims decree provides that, unless approved or “validated” pursuant to the decree, a selection procedure could be used only if it did “not have a disproportionate detrimental impact upon minority applicants.” Civil action no. 3708-N (M.DAla. March 22, 1973) (plan attached at 6, ¶ 6). The decree further provides that “validation” shall be based on a “study ... conducted, pursuant to the Equal Employment Opportunity Guidelines on Employee Selection Procedures, 35 Federal Register, pp. 12333-12336 (August 1, 1970), which shows that the tests Defendants desire to use accurately predict job performance, and that the education standards relate to the ability of the applicants to do the job.” Id. The decree does not define “disproportionate detrimental impact” or how such impact was to be measured. In reviewing the Sims decree at that time, Dr. Veres was uncertain whether validation studies acceptable under the Williams decree would comply with the Sims decree as well. Dr. Veres read the 1973 Sims decree to require that their selection procedures be validated using only “criterion-related studies,” and he believed it problematic, if not impossible, to construct a criterion-related validation study for the 1988 promotion procedures. In addition, even if the Sims decree, like the Williams decree, could be read to authorize “content-related validity studies,” it would be a lengthy and complex process to obtain a judicial finding that their selection procedures were content valid. Dr Veres was also uncertain about the meaning of “disproportionate detrimental impact.” The phrase had no meaning in the science of statistics. The defendants contend that, confronted with these unresolved complex legal and factual issues in the face of the department’s need for the promotions as soon as possible, their counsel instructed Veres to implement selection procedures that would avoid adverse impact and to use the four-fifths rule as the operational definition for “disproportionate detrimental impact” and “adverse impact” under both decrees. The structured oral interview was administered to 23 candidates. Based on the candidates’ overall performance scores, which represented a weighted average of the combined written examination and oral interview performance score, the Center compiled a rank-order list of candidates recommended to be certified for promotion to sergeant in the law enforcement division. All the white candidates placed higher than the black candidates on the rank-order list. The Sheriffs Department stated that it desired to promote five persons to sergeant in the enforcement division. Under the “rule of five” — according to which the number of persons certified to a department for consideration equalled the number of vacancies plus four — the Montgomery City-County Personnel Board was required to refer the top nine ranking candidates to the Sheriffs Department. In order to avoid adverse impact, however, the Center advised the City-County Personnel Board not to certify the top nine candidates. Instead, the Center recommended certification of the top seven white candidates and the top two black candidates. Some white candidates were therefore passed over for lower scoring black candidates. The Sheriffs Department later notified the Center that it had seven sergeant positions to fill. The Center then recommended the certification of eleven candidates, eight whites and three blacks. All eleven candidates were deemed qualified for promotion by the Center. The decision to recommend eight whites and three blacks arose out of a meeting on October 11, 1988, attended by Dr. Veres and attorneys for all parties then involved in the litigation. At that meeting, counsel asked Dr. Veres how many blacks and how many women the Sheriffs Department would have to promote in order to avoid adverse impact upon both blacks and women, as required by the Sims and Williams decrees. Dr. Veres advised counsel that, assuming seven promotions were to be made, three blacks and two women would have to be promoted. Dr. Veres performed the four-fifths rule calculations during the meeting. He calculated adverse impact as to the year 1988 only and did not take into account hiring over any previous time period. Dr. Veres later testified, however, that only two blacks needed to be promoted to avoid adverse impact for the year 1988, but that the promotion of three blacks was necessary to avoid adverse impact for the period 1981 through 1988. At the meeting, counsel for the Williams class and counsel for the Scott intervenors expressed objections to the proposed promotions. The meeting broke up when it became apparent that all counsel could not agree on the breakdown of the promotions and that the dispute would have to be submitted to the court for resolution. After the meeting, counsel for defendants met with Chief Deputy Huggins. They advised him of Dr. Veres’s assertion that three black deputies had to be promoted to avoid adverse impact and comply with the Sims decree. Chief Deputy Huggins in turn passed Dr. Veres’s recommendation on to then-Sheriff Butler. Butler directed Huggins to follow Dr. Veres’s recommendation and promote whomever had to be promoted in order to comply with the various decrees. Sheriff Butler, selected four whites (three white males and one white female) and three blacks (two black males and one black female) for promotion to sergeant. The white candidates were the four highest ranked on the list of white candidates, and the black candidates were the three highest on the list of black candidates. The defendants then filed a motion with the court for approval of the promotions. The Scott intervenors opposed the promotions but later withdrew their objection. On December 1, 1988, after a hearing, the court granted the defendants’ motion to approve the promotions, and the promotions became effective December 12, 1988. Civil action nos. 3708-N & 82-T-717-N (M.DAla.). II. MOTIONS FOR SUMMARY JUDGMENT The Dodson intervenors and the defendants seek summary judgment on the Dodson intervenors’ challenge to the 1988 promotions to sergeant. Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment is appropriate where “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Once the party seeking summary judgment has informed the court of the basis of its motion, the burden shifts to the non-moving party to demonstrate why summary judgment would be inappropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); see also Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115-17 (11th Cir.1993) (discussing how the responsibilities on the movant and the non-movant vary depending on whether the legal issues, as to which the facts in question pertain, are ones on which the movant or non-movant bears the burden of proof). In making its determination, the court must view all evidence and any factual inferences in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). A. The Dodson Intervenors’ Fourteenth Amendment Claims The court first addresses the merit of the Dodson intervenors’ claims based on the equal protection clause of the fourteenth amendment as enforced through § 1983. It is now axiomatic that, absent necessary justification, the fourteenth amendment prohibits govemmentally imposed racially and sexually discriminatory classifications. Richmond v. J.A Croson Co., 488 U.S. 469, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989); Johnson v. Transportation Agency, 480 U.S. 616, 107 S.Ct. 1442, 94 L.Ed.2d 615 (1987). The intervenors’ complaint-in-intervention suggested that the 1988 promotions were unlawfully based on both race and sex. 1. Sex Discrimination Claim The Dodson intervenors have not pursued their claim of sex discrimination in any of their subsequent pleadings or briefs. They have also failed to present evidence even suggesting that the defendants unlawfully discriminated against them on the basis of sex. Summary judgment is therefore appropriate on the Dodson intervenors’ claim of sex discrimination. 2. Good Faith Defense The defendants admit that the 1988 promotions were race-conscious decisions but contend that they cannot be held liable because the promotions were, at worst, a good faith mistake. The defendants attempted to analogize their alleged good faith mistake to the actions of an employer who had discharged an employee contending that the employee’s performance was unsatisfactory. The employer may avoid liability if it proves to the factfinder that it had a good faith belief that the employee’s performance was unsatisfactory, even if the employer later discovers that it was mistaken. See, e.g., Moore v. Sears, Roebuck & Co., 683 F.2d 1321, 1323 n. 4 (11th Cir.1982). The defendants argue that they likewise in good faith believed that the 1973 Sims decree required the promotion of three blacks though they may have been mistaken. The defendants’ analogy is flawed. In Moore, the employer gave a “race-neutral” reason for its employment decision and contended that its race-neutral decision was made in good faith. Here, in contrast, the defendants admit that their employment decision was race conscious. Thus, the good faith reliance referred to in Moore does not apply to the 1988 promotions. The defendants further argue that they did not violate the fourteenth amendment because they did not have any invidious intent to harm white deputies. They contend that an attempt to favor blacks may exist without the intent to harm whites. The Supreme Court has expressly rejected this argument, stating “that equal protection analysis ‘is not dependent on the race of those burdened or benefited by a particular classification.’ ” Shaw v. Reno, — U.S. -,-, 113 S.Ct. 2816, 2829, 125 L.Ed.2d 511 (1993) (quoting Croson, 488 U.S. at 494, 109 S.Ct. at 722 (plurality opinion)). The defendants further suggest that their actions were, at worse, “benign.” Again, the Supreme Court has rejected such an argument, writing that merely because a “category of ... racial discrimination” could be viewed as “benign” does not warrant subjecting it to “relaxed judicial review.” Shaw, — U.S. at -, 113 S.Ct. at 2830. Indeed, the Court continued, “the very reason that the Equal Protection Clause demands strict scrutiny of all racial classification is because without it, a court cannot determine whether or not the discrimination truly is ‘benign.’ ” Id. See also Hicks v. Dothan City Bd. of Educ., 814 F.Supp. 1044, 1048 (M.D.Ala.1993) (race-conscious discrimination, albeit perhaps benign, not permissible by the fourteenth amendment under circumstances presented). Admittedly, the Fifth, Sixth, and Tenth Circuit Courts of Appeals have held that “a good faith settlement of a claim of past discrimination constitutes a legitimate, nondiscriminatory reason for making employment decisions.” Marcantel v. State of La., Dept. of Transp. & Dev., 37 F.3d 197, 202 (5th Cir.1994). See also Carey v. U.S. Postal Service, 812 F.2d 621 (10th Cir.1987); EEOC v. McCall Printing Corp., 633 F.2d 1232 (6th Cir.1980). This court declines to rely on the holdings in Marcantel, Carey, and McCall because, in those cases, the persons whose positions were part of a settlement were purportedly victims of discrimination. Here, in contrast, there is no evidence that the three blacks who were selected over whites for promotion to sergeant in 1988 had themselves been victims of discrimination. Moreover, other equitable considerations not applicable here support the decisions in Marcantel, Carey, and McCall. To allow employers to be open to claims of discrimination as a result of individual good faith settlements “would subject employers to conflicting obligations.” Marcantel, 37 F.3d at 200. The “consideration of a conciliation agreement which results in a consent decree as an act of discrimination against employees not benefit-ted by that agreement would create a situation in which each settlement would spark new rounds of litigation, settlement of claims would be discouraged, and the courts would be continually faced with stale claims.” McCall Printing Corp., 633 F.2d at 1238. The Fifth Circuit also stated that its case was not controlled by Regents of the University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978), because, under the settlement, all those eligible “were affected regardless of their race.” Marcantel, 37 F.3d at 200. Here, in contrast, all those eligible were affected or not affected only because of their race. 3. Standing of the Dodson Intervenors The Dodson intervenors argue that the defendants incorrectly interpreted the requirements of the 1973 Sims decree and, because of this erroneous interpretation, exceeded the scope of the decree in promoting three blacks. The defendants respond that the intervenors lack “standing” to make this argument. In two recent eases, the Sixth Circuit Court of Appeals rejected an identical argument, holding that persons who were not parties to a consent decree lacked standing to enforce the decree according to their own interpretation of it. In Vogel v. City of Cincinnati, 959 F.2d 594 (6th Cir.), cert. denied, — U.S. -, 113 S.Ct. 86, 121 L.Ed.2d 49 (1992), the City of Cincinnati developed an affirmative action hiring policy pursuant to a consent decree. Vogel, a white male police officer, subsequently brought suit against the city, arguing that the city’s police department went beyond the consent decree in administering its hiring policy. Vogel argued that the city had implemented a “quota system” by hiring a predetermined percentage of blacks in violation of the consent decree. The Sixth Circuit stated: “In contending that the City had gone beyond the scope of the consent decree in administering its affirmative hiring policy, Vogel, who was not a party to the consent decree, seeks collaterally to enforce it according to his own interpretation of it. We hold that Vogel lacks standing to assert such a claim.” 959 F.2d at 598. The court explained that a consent decree, although in effect a final judgment, is a contract founded on the agreement of the parties. Id. at 598. The decree should be construed to preserve the position for which the parties, and not others, bargained. Id. The decree “represents a compromise between parties who have waived their right to litigation and, in the interest of avoiding the risk and expense of suit, have giv[en] up something they might have won had they proceeded with the litigation.” United States v. Armour & Co., 402 U.S. 673, 681, 91 S.Ct. 1752, 1757, 29 L.Ed.2d 256 (1971). Accordingly, a consent decree “is not enforceable directly or in collateral proceedings by those who are not parties to it.” Vogel, 959 F.2d at 598 (quoting Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 750, 95 S.Ct. 1917, 1933, 44 L.Ed.2d 539 (1975)). It “may be challenged only on the ground that its substantive provisions unlawfully infringed upon the rights of the complainant.” Id. (quoting Vanguards of Cleveland v. City of Cleveland, 753 F.2d 479, 484 (6th Cir.1985)). Thus, the court held that Vogel did not have standing to challenge the decree according to his interpretation of it but could claim that the decree as it applied to him violated the fourteenth amendment. Similarly, in Jansen v. City of Cincinnati, 977 F.2d 238 (6th Cir.), cert. denied, — U.S. -, 113 S.Ct. 2344, (1993), white applicants for the city’s fire department claimed that the implementation of separate hiring lists by race was not authorized by a consent decree and involved the use of impermissible quotas. As in Vogel, the appellate court held that the plaintiffs lacked standing to challenge the city’s interpretation of the consent decree and to have the decree interpreted upon their own terms. The court stated that the plaintiffs’ challenge must be limited to the constitutionality of the decree as it applied to them. Id., at 242. Relying on Vogel and Jansen, this court agrees with the defendants that, because the Dodson intervenors were not parties to the 1973 consent decree in Sims, they lack standing to challenge the defendants’ interpretation of the decree and thus to assert that defendants exceeded the scope of the decree. See Paradise v. Prescott, 767 F.2d 1514, 1525 (11th Cir.1985) (per curiam) (because a consent decree has many of the attributes of a contract, it should be construed in light of traditional tenets of contract construction), aff'd on other grounds, 480 U.S. 149, 107 S.Ct. 1053, 94 L.Ed.2d 203 (1987). The Dodson intervenors, however, do have standing to challenge the “legality” of the decree to the extent it affects them. 4. Interpretation of the 1973 Sims Decree As stated above, the interpretation of the 1973 Sims decree is not before the court because the Dodson intervenors have no standing to challenge the defendants’ interpretation. Nevertheless, because the Eleventh Circuit has yet to address standing in the context presented here, this court will confront the Dodson intervenors’ challenge to the defendants’ interpretation of the decree. Although a consent decree is essentially a judgment, Paradise, 767 F.2d at 1525, it “also has many attributes of a contract between the parties” and thus should be construed in light of the traditional tenets of contract construction, with the “scope of [the] decree ... discerned within its four corners.” Id. (quoting Armour & Co., 402 U.S. at 682, 91 S.Ct. at 1757); see also United States v. I.T.T. Continental Baking Co., 420 U.S. 223, 233-38, 95 S.Ct. 926, 933-35, 43 L.Ed.2d 148 (1975); Jacksonville Branch, NAACP v. Duval County School Bd., 978 F.2d 1574, 1578 (11th Cir.1992). But, when language in a consent decree is ambiguous, courts may consider extrinsic evidence. Brewer v. Muscle Shoals Bd. of Educ., 790 F.2d 1515, 1519 (11th Cir.1986). Moreover, because a decree is a court order, it follows that one of the most important extrinsic factors to which courts may turn in resolving ambiguity are those equitable considerations that flow from the statutes that underlay the decree. The 1973 Sims decree provides that, unless approved or validated pursuant to the decree, a selection procedure could be used only if it did “not have a disproportionate detrimental impact upon minority applicants.” Civil action no. 3708-N (M.D.Ala. March 22, 1973) (plan attached at 6, ¶ 6). The decree, however, does not define “disproportionate detrimental impact” or how such impact was to be measured, and it does not appear that the phrase has an established meaning within the science of statistics. The Dodson intervenors agree that phrase means adverse impact but contend that, under the 1978 Sims decree, adverse impact should be measured by “statistical significance”; the intervenors, however, do not specify what method of statistical significance should be used. The phrase is therefore ambiguous. a. The Four-Fifths Rule The defendants contend that the phrase “disproportionate detrimental impact” should be interpreted to incorporate the 1978 Uniform Guidelines’ four-fifths rule. The Dodson intervenors respond that the 1973 Sims decree could not have required the four-fifths rule because the rule did not exist until after 1973 and did not become a part of the Guidelines until 1978; they argue that the decree could only have incorporated the Guidelines as they existed in 1973. The court agrees with the Dodson intervenors that the decree required that adverse impact be measured under the standards set forth in the Guidelines. However, the intervenors’ further contention that the court can look only to the Guidelines as they existed in 1973 is essentially meaningless and unhelpful. The Guidelines, as they existed in 1973, refer to “adverse effect” but do not define what the phrase means. 35 Fed.Reg. 12,334 (1970). Therefore, it is still necessary to look elsewhere to determine what the phrase adverse effect means. The defendants therefore logically suggest that the first place to look would be to whether and how later versions of the Guidelines have fleshed out the phrase. Fortunately, there is a later version of the Guidelines that does just that: the 1978 Guidelines which contain the four-fifths rule. This logical conclusion is reinforced by an important practical consideration: the four-fifths rule is required in the 1985 Williams consent decree. Although the Williams decree was entered into well after the Sims decree, it makes sense that adverse impact under both decrees should be measured by the same standards, if possible. Finally, a closer analysis of the Dodson intervenors’ argument reveals another major flaw. The intervenors limit their argument to the determination of adverse impact on blacks. They argue that adverse impact on whites should be determined by the four-fifths rule and that adverse impact on blacks should be determined by statistical significance. This argument is illogical and unfair. The parties to the decree could not have intended that the Guidelines would have one meaning as to blacks and another as to whites. b. Time Frame The next issue in interpreting the decree is what time frame to use in measuring adverse impact. The Dodson intervenors look to only 1988, the year in which the promotions were made. The defendants assert that the period preceding 1988 must also be used to determine adverse impact. The defendants say that they have promotional hiring records only for the period 1981 through 1988, and they have provided these records. The Sims decree has been in effect since 1973 but, as demonstrated in this court’s 1990 opinion, Sims, 766 F.Supp. at 1081-1103, the defendants engaged in not only delay in implementation of the decree but in gross violations of the decree until 1988. In the opinion, the court described the employment picture of the department prior to the 1988 promotions as follows: “In 1988, 20 years after Butler hired his first African-American officer, the racial make-up of the Sheriffs Department raises a strong suspicion that the department has not truly begun to redress its past discriminatory practices; indeed, the evidence before this court reflects that, in many ways, the department has consciously perpetuated them. In a county that is over 30% black in population, no black person as of 1988 had ever been promoted on the enforcement side of the department; no black officer had ever supervised a white officer in the enforcement division____ In addition, to compound this bleak picture, it appears that blacks are not only restricted to the lowest rank, they are also concentrated in the corrections division of the department, the less prestigious of the department’s two divisions. Fifty-nine or 77% of the 76 officers in corrections were black; and only 15 or 19% of 78 officers in enforcement were black.” Id. at 1085. It therefore follows that the period at issue is, at least, 1973 through 1988, the period of transgression. To limit the period of measurement to 1988 would be to reward the defendants for their violations. This approach of considering delay and violations is not without precedent. In Paradise v. Prescott, 585 F.Supp. 72 (M.D.Ala. 1983), this court was confronted with a request by black troopers to enforce the terms of two previously entered consent decrees requiring the Alabama Department of Public Safety to develop promotion procedures that had little or no adverse impact on blacks as measured by the four-fifths rule. In fashioning a remedy, this court examined not only the adverse impact of the one set of promotions at issue but also took into consideration the department’s promotional hiring record since it had first been prohibited from discrimination against blacks. Id. at 74-76. In affirming this court, the Eleventh Circuit and the Supreme Court agreed with this approach: Paradise v. Prescott, 767 F.2d 1514, 1525 (11th Cir.1985) (per curiam); United States v. Paradise, 480 U.S. 149,173, 107 S.Ct. 1053, 1067, 94 L.Ed.2d 203 (1987) (plurality opinion). In any event, in evaluating adverse impact, “time-frame” or “flow” statistics focusing on employment decisions made over a period of time are preferred over “static” or “snapshot” statistics focusing on employment decisions made at a fixed point in time. See, e.g., Hazelwood School Dist. v. United States, 433 U.S. 299, 309, 97 S.Ct. 2736, 2742, 53 L.Ed.2d 768 (1977) Groves v. Alabama State Bd. of Educ., 776 F.Supp. 1518, 1523-29 (M.D.Ala.1991); see also Schlei & Grossman, Employment Discrimination Law, 1365 (2d ed. 1983) (“Following Hazelwood, most courts prefer, if not require, time-frame statistics”). Admittedly, the court has before it hard statistical data for only the period 1981 through 1988. This limitation does not, however, prevent the court from considering the entire period from 1973 to 1988. As the Fifth Circuit Court of Appeals has noted, “A plaintiff may use statistical as well as non-statistical evidence in 'establishing a prima facie case of disparate impact.” Bunch v. Bullard, 795 F.2d 384, 395 (5th Cir.1986) (quoting Pape v. U.S. Industries, Inc., 726 F.2d 1038, 1053 (5th Cir.1984)). And this non-statistical evidence may include a “pattern of racial discrimination.” Bunch, 795 F.2d at 395. See also Groves, 776 F.Supp. at 1529 (although the parties were not able “to fashion a perfect statistical picture, and, indeed, it appealed] that the task may be impossible,” the court considered non-statistical circumstantial evidence to support finding of “substantial adverse racial impact”); cf. Question 21 of the Questions and Answers to Clarify and Provide a Common Interpretation of the Uniform Guidelines, 44 Fed.Reg. 11,999 (March 2, 1979) (a small sample will support a finding of adverse impact “if a lower selection rate continued over a period of time, so as to constitute a pattern”). Moreover, it is not without significance that the court is without data for the period 1973 through 1981 because the defendants failed to keep such data — data that, from the evidence presented in support of the 1990 opinion, would more than likely have been very incriminating. The already victimized blacks in the Sheriffs Department should not be further disadvantaged because of the defendants’ actions or lack thereof. Cf. 29 C.F.R. § 1607.4(D) (“Where the user has not maintained data on adverse impact as required by the documentation section of applicable guidelines, the Federal enforcement agencies may draw an inference of adverse impact of the selection process from the failure of the user to maintain such data, if the user has an underutilization of a group in the job category, as compared to the group’s representation in the relevant labor market or, in the case of jobs filled from within, the applicable work force”). 5. Application of the Four-Fifths Rule In applying the four-fifths rule and in looking at adverse impact for the period before and including 1988, the defendants argue that the 1973 Sims decree required that they promote three blacks in the enforcement division. The Dodson intervenors argue that it was necessary to promote only one or two blacks to avoid adverse impact under the decree. The court agrees with the defendants. If only two blacks and 13 whites had been promoted, the promotion rate for blacks would have been 79.4% of the promotion rate for whites. Although this number is very close to 80%, the number fails to take into account the full “time frame,” that is, the full and bleak picture of the department’s employment history all the way back to 1973. The circumstantial evidence as recounted in the court’s 1990 opinion for the entire period 1973 through 1988 and the direct statistical evidence for the period 1981 through 1988 provide a strong basis to conclude that for the entire period 1973 through 1988 — during which no blacks were promoted or transferred to any supervisory position in the enforcement division — the promotions to sergeant within the department have had a substantial adverse impact on blacks. Groves, 776 F.Supp. at 1529 (although the parties were not able “to fashion a perfect statistical picture, and, indeed, it appeared] that the task may be impossible,” the court concluded from circumstantial evidence that there was “substantial adverse racial impact”). “Indeed, to reach any other conclusion the court would have to close its eyes to the obvious.” Id. More importantly, the court must consider that the pool of black applicants for promotion to sergeant was severely constricted by the defendants’ discrimination against blacks in hiring and transfers in violation of the law and the 1973 Sims decree itself. See United States v. Paradise, 480 U.S. at 168, 107 S.Ct. at 1067 (plurality); Stuart v. Roache, 951 F.2d 446, 452 (1st Cir.1991); see also 29 C.F.R. § 1607.4(D) (“Smaller differences in selection rate may nevertheless constitute adverse impact ... where a user’s actions have discouraged applicants disproportionately on grounds of race”). As the Supreme Court explained in Paradise, “Discrimination at the entry level necessarily precluded blacks from competing for promotions, and results in a departmental hierarchy dominated exclusively by non minorities.” 480 U.S. at 168, 107 S.Ct. at 1065 (plurality). See also Ensley Branch, NAACP v. Seibels, 31 F.3d 1548, 1564 (11th Cir.1994) (“The Board’s discrimination against blacks seeking entry-level police and firefighter jobs made it almost inevitable that the effects of discrimination had worked their way up to taint City and Board promotional positions, too”). The promotions to sergeant were made only from those persons who were already officers. Because of the defendants’ discrimination in hiring and transfers, there were few blacks eligible for promotion. Therefore, any method of measuring adverse impact that was based on the number of applicants would have inaccurately reflected the history of discrimination. Finally, the court must comment that, although the numbers here are relatively small, a finding of adverse impact is still appropriate. Admittedly, in general, a sample size may be too small to support a determination of whether there is adverse impact. Question 21 of the Questions and Answers to Clarify and Provide a Common Interpretation of the Uniform Guidelines, 44 Fed.Reg. 11,999. (March 2, 1979). A small sample will support a finding of adverse impact, however, “if a lower selection rate continued over a period of time, so as to constitute a pattern.” Id. In other words, as the Fifth Circuit has explained, “ ‘[T]he limited size of the population in question [does not preclude us] from recognizing a decisive pattern emerging from a history of experiences.’” Bunch, 795 F.2d at 395 (quoting Rivera v. City of Wichita Falls, 665 F.2d 531, 536 n. 7 (5th Cir.1982). Here, the racial pattern is self-evident: for 15 years, between 1973 and 1988, the department promoted and transferred no blacks to any supervisory position in the enforcement division. Sims, 766 F.Supp. at 1085. The court therefore agrees with the defendants that, in light of the above factors, any doubts as to whether the close figure of 79.4% constitutes adverse impact against blacks should be resolved in favor of such a finding. As stated, this figure does not take into account the number of blacks who would have applied for promotion had defendants not discriminated in hiring, nor does it take into consideration the defendants’ actual discrimination in promotions and transfers. ■ 6. The Dodson Intervenors’ Contention that the 1988 Promotions Were Not Based on the 1973 Sims Decree The Dodson intervenors claim that, regardless of what the 1973 Sims decree required, the defendants’ decision to promote three blacks was not based on the requirements of the decree. Instead, according to the intervenors, the defendants were trying to avoid a finding in the then-pending round of litigation in 1988 that they had discriminated on the basis of race. The court rejects the Dodson intervenors’ claim for two reasons. First of all, because the defendants were required to comply with the Sims decree in the manner that they did and because, as explained below, the decree is legal, it is immaterial what their motive was. And second, even if the defendants took the action that they did in an effort to redress past discrimination against blacks independent of the 1973 Sims decree — or, as the Dodson intervenors would characterize it, to avoid a judicial finding of discrimination — their action, as explained below, is still legal. 7. Constitutionality of the 1988 Promotions The Dodson intervenors have explicitly stated that they do not challenge the constitutionality of the 1973 Sims decree. They asserted the following in one of their briefs: “Defendants argue that the Consent Decrees are constitutional. The Dodson Intervenors agree.” However, after the defendants asserted that the Dodson intervenors lacked standing to challenge the interpretation of the consent decree, the intervenors changed their position and argued that the defendants’ “interpretation” of the decree is unconstitutional. In addressing the issue of the legality of the defendants’ actions, however, the court need not split hairs between whether the Dodson intervenors are challenging the constitutionality of the decree, or its interpretation, or both, and the court need not try to determine whether the defendants were acting pursuant to the 1973 decree or not: the bottom line is whether the 1988 promotions were legal. The court must determine whether the race-conscious decision of the Sheriffs Department to appoint three black officers as sergeant was legal under 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 a personnel decision or in a consent decree. In re Birmingham Reverse Discrimination Emp. Lit., 20 F.3d 1525, 1534 (11th Cir.1994); Shuford v. Alabama State Bd. of Educ., 846 F.Supp. 1511, 1520 (M.D.Ala.1994); see also Croson, 488 U.S. at 503, 506,109 S.Ct. at 727, 728 (majority opinion applies strict scrutiny); Peightal v. Metro. Dade County, 26 F.3d 1545, 1552 (11th Cir.1994). 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 classification ‘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 Seibels, 31 F.3d at 1564; Peightal, 26 F.3d at 1552-53. Importantly, the Supreme Court has indicated that the government “unquestionably has a compelling interest in remedying past and present discrimination.” Paradise, 480 U.S. at 167, 107 S.Ct. at 1064 (plurality opinion); see also Seibels, 31 F.3d at 1565; Peightal, 26 F.3d at 1552. 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 the Montgomery County Sheriffs Department. Stuart v. Roache, 951 F.2d 446, 449 (1st Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1948, 118 L.Ed.2d 553 (1992). a. Compelling Governmental Interest Whether race-conscious relief serves a remedial purpose with respect to past discrimination is an evidentiary issue. Seibels, 31 F.3d at 1565; Peightal, 26 F.3d at 1553. The court need not make “formal findings” of discrimination; rather, there must be a “strong basis in evidence” for the conclusion that the consent decree or voluntary action 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 Peightal, 26 F.3d at 1553; Shuford, 846 F.Supp. at 1521. Here, however, there is not only a strong basis in evidence that remedial action was necessary but contemporaneous findings by this court of the defendants’ discrimination against blacks. Indeed, the Dodson intervenors themselves point to the egregious past history of discrimination by the defendants: “Dodson Intervenors agree that Defendants Sheriff and Chief Deputy Sheriff for fifteen years [between 1973 and 1988] consciously discriminated against African-Americans in violation of the court Order and Consent Decree in every aspect.” Background history of race discrimination in the Sheriffs Department. In its 1990 opinion, the court found that the Montgomery County Sheriffs Department “hired [its] first African-American officer in 1968.” Sims, 766 F.Supp. at 1085. “Before then,” the court continued, “the Sheriffs Department refused to hire black persons solely because they were black.” Id. The department did, however, “recruit a number of blacks to serve as ‘special’ deputies to assist with ‘black social functions’; [the department] also used these ‘special deputies,’ in the mid-60’s during the height of the ‘civil rights movement,’ to assist in handling civil rights disorders. These black deputies, who were recruited merely because they were black, were mere volunteers and not employees of the department.” Id. The court further found that, “In 1988, twenty years after [the department] hired [its] first African-American officer,” it had “consciously perpetuated” its “past discriminatory practices.” Sims, 766 F.Supp. at 1085. The court explained: “In a county that is over 30% black in population, no black person as of 1988 had ever been promoted on the enforcement side of the department; no black officer had ever supervised a white officer in the enforcement division. Moreover, only five persons have been promoted on the corrections side. In addition, to compound this bleak picture, it appears that blacks are not only restricted to the lowest rank, they are also concentrated in the corrections division of the department, the less prestigious of the department’s two divisions. Fifty-nine or 77% of the 76 officers in corrections were black; and only 15 or 19% of 78 officers in enforcement were black.” Id. Racial assignment of officers to cars and neighborhoods. The court found that “The department has ... consciously perpetuated its discriminatory policies of the past and continued to treat black officers as only ‘special’ officers, restricted mainly to dealing with black people, and not as full-fledged law enforcement officers for all the people of the county, both black and white.” Sims, 766 F.Supp. at 1086 (emphasis in original). The court explained that, “Beginning with the first African-American deputy in 1968 and up until the initiation of this litigation in 1988, the department has in general assigned black officers to serve as car partners with only black officers, and white officers to serve as car partners with white officers,” and that, “The department has in general also assigned black officers to work in the predominately black west side of the City of Montgomery and white officers to the predominately white east side.” Id. at 1085-86. Moreover, the court continued, “in those limited instances where the departmental officials have reluctantly assigned black officers to ride with white officers, they have made known that it would be particularly objectionable for white female officers to ride with black male officers; the same strong objection was not voiced for black females riding with white males.” Id. at 1086. Individual claims of racially disparate treatment. The court described how “W.P. Scott was denied a transfer to the investigation unit for racially retaliatory reasons; how Melvin Turner was denied a promotion to captain in 1983 and in 1987 because of his race; how Turner was also denied a transfer, to the more prestigious enforcement division in 1987 because of his race; how Addie Berry was denied temporary duty as head of the court security unit in 1987 because of her race; and how the department refused to accommodate Cinda Brown’s pregnancy because of her race.” Sims, 766 F.Supp. at 1098. The court also found that Stoney Davis was denied employment in corrections because he is black. Id. The evidence also reflected that black officers were disciplined and were more harshly punished because of their race. Id. The court found that “officials of the Sheriff’s Department have engaged in a pattern and practice of discriminating against black officers in four major areas of personnel action: discipline, promotions, transfers, and job assignments.” Id. at 1097. Racial harassment. The court found “that racial harassment in the Montgomery County Sheriffs Department has permeated all ranks, from the lowest level corrections officers and deputy sheriffs to the sheriff himself, and is so pervasive and severe as to render the working conditions in the department psychologically intolerable for black officers.” Sims, 766 F.Supp. at 1092. The court explained that when the department began to hire black officers in the late 60’s and early 70’s, the terms “nigger,” “black nigger,” “red nigger,” and “apes” were common, and that “one of those who regularly referred to black persons as ‘niggers’ was [the sheriff] himself.” Id. at 1093. The court further explained that, “Although the use of the term ‘nigger’ in the department has declined over the years, it is still used often enough to perpetuate this atmosphere.” Id. Thus, there was more than a strong basis in evidence that the remedial action by the defendants served a compelling purpose. The court found not only a statistical imbalance but that the defendants had intentionally discriminated against blacks in hiring and promotion, and especially in the enforcement division. The discrimination continued through the time of the 1988 promotions. Accordingly, the defendants have shown a compelling governmental purpose for the 1988 promotions, whether the promotions are reviewed as required by the consent decree or simply as a voluntary action. b. Narrowly Tailored The Supreme Court has 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 relief on the rights of third parties. Paradise, 480 U.S. at 171, 107 S.Ct. at 1066 (citations omitted) (plurality opinion); see also Peightal, 26 F.3d at 1557; Shuford, 846 F.Supp. at 1528. Flexibility and duration. The flexibility and short duration of the promotional relief cannot be questioned. The promotion of the three blacks was a one-time interim measure used only until validated testing procedures could be put in place. See Paradise, 480 U.S. at 185-86, 107 S.Ct. at 1074 (plurality opinion) (approving one-time imposition of race-conscious promotions until valid promotion procedures could be developed and implemented); Seibels, 31 F.3d at 1571 (“An end to racial discrimination demands the development of valid, non-discriminatory selection procedures to replace race-conscious selection procedures”). Indeed, the court has now approved valid, nondiscriminatory permanent promotion procedures for the department. Civil action nos. 3708-N & 82-T-717-N (M.D.Ala. Dec. 7, 1994). Contrast Seibels, 31 F.3d at 1571 (“Although the decree ordered the Board to comply with Title VII by developing valid tests, it provided no deadlines or formal review mechanism to ensure that the Board actually did so. That omission turned out to be a serious flaw”). Over- and under-inclusiveness. The 1988 promotions were neither over-inclusive nor under-inclusive. The promotions applied only to those who were qualified for promotion within the department. See Paradise, 480 U.S. at 177-78, 107 S.Ct. at 1070 (plurality) (relief was appropriate where only qualified applicants were promoted and where employer not obligated to make unnecessary or gratuitous promotions). All of the blacks who were promoted were considered qualified pursuant to the written examination and oral interviews given to all applicants for the 1988 promotions. There are no claims that the promotions were under-inclusive. Efficacy of alternative remedies. The consent decree prevented the Sheriffs Department from making only those promotions that would have an adverse impact on blacks. The decree therefore did not limit the department to using any particular method for promoting officers. The Dodson intervenors do not offer alternative remedies except to argue that promoting one or two black officers instead of three would have sufficed. As the court has found, however, the defendants had never promoted a single black to sergeant in the enforcement division, even in the 15 years after the 1973 Sims decree took effect. Alternative remedies had therefore not succeeded. The promotion of three blacks was the only way to ensure that blacks received the full relief necessary to remove the vestiges of discrimination, and especially in light of the 15-year delay. Effect of remedy on intervenors. The decree did not prevent whites from being promoted to sergeant in enforcement but merely limited the number of whites who were promoted in 1988. In fact, four of the named Dodson intervenors — -Robert A. Stone, William H. Mills, Mark C. Thompson, and Steven R. Parker — -were promoted to sergeant in 1991. The promotions did not cause the layoff of any white officers and merely delayed their opportunity for advancement. In addition, the promotions were not intended to set employment percentage goals or ensure a racially balanced work force. In re Birmingham Reverse Discrimination Emp. Lit., 20 F.3d at 1547. After the one set of promotions was made, the defendants proceeded to promulgate promotional procedures that would not be race-conscious. Indeed, as stated, valid, nondiscriminatory permanent promotion procedures have been approved for the department. Civil action nos. 3708-N & 82-T-717-N (M.D.Ala. Dec. 7, 1994). Accordingly, the court finds the 1988 promotions were narrowly tailored to meet a compelling gov