Full opinion text
MEMORANDUM OPINION AND ORDER MYRON H. THOMPSON, Chief Judge. This lawsuit began when plaintiff Humphrey L. Shuford, an African-American, brought an employment discrimination claim charging that he had been denied promotions in Alabama’s postsecondary educational system because of his race. He named as defendants the Alabama State Board of Education and its chancellor and individual board members and the Atmore State Technical College and its president. Shuford eventually became the class representative of all black citizens denied employment in or promotion to presidential, faculty, administrative, or supervisory positions in the postsee-ondary system. The Shuford class charged that the defendants had violated a number of federal civil rights laws. Prior to approval of a partial consent decree resolving the race discrimination claims of the Shuford class, four women — Connie Johnson, Karen Newton, Myra P. Davis, and Sheryl B. Threatt — intervened as plaintiffs to raise claims of sex discrimination in employment in the postsecondary system on behalf of female professional educators. They brought claims against all of the Shuford defendants and added as defendants the Muscle Shoals State Technical College and its president, Lawson State Community College and its president, and Northwest Alabama Community College and its administrative heads. These plaintiffs charged that the defendants had violated Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.A. §§ 1981a, 2000e through 2000e-17 (West 1994); Title IX of the Education Amendments of 1972, as amended, 20 U.S.CA. § 1681(a) (West 1990); and the fourteenth amendment to the United States Constitution, as enforced by 42 U.S.C.A. § 1988 (West 1994). Jurisdiction is proper under 28 U.S.C.A §§ 1331, 1343(a)(4) (West 1993) and 42 U.S.C.A. § 2000e-5(f)(3) (West 1994). The female plaintiffs and the defendants have submitted a proposed partial consent decree which would resolve sex- and race-based claims brought by white and black women against the postsecondary system. Two white men, Jamie C. Moncrief and Thomas L. Davis, intervened in this action to oppose the decree. After negotiations between the parties, Moncrief and Davis dropped their objections. This cause is now before the court on the female plaintiffs’ and the defendants’ joint motion for approval of the proposed partial consent decree. After reviewing the decree and after considering all comments for and against it, the court has concluded that the decree should be approved. I. BACKGROUND Alabama’s postsecondary 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. The Shuford class challenged as racially discriminatory the hiring and promotional practices of Alabama’s post-secondary educational system for presidential, faculty, administrative, and supervisory positions. The court granted motions to intervene by Johnson, a white female teacher and administrator in the public schools of Alabama, and Newton, a white female administrator at Northwest Alabama Community College. The parties to the proposed decree stipulated to the certification of a “class of all female 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.” Schedule A positions are presidents, B positions are administrators and managers, C positions are non-faculty professionals, and D positions are faculty members. The court certified the class of women stipulated to by the parties, with Johnson and Newton as class representatives. The class of women, like the Shuford class, claims that the cause of employment discrimination is that college presidents in the post-secondary 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 class of women alleges that, as a result of the lack of uniform, reviewable employment standards at most institutions, discrimination against female professionals is widespread, resulting in the underrepresentation of female employees throughout schedules A, B, C, and D, particularly at the higher levels. Davis and Threatt, two African-American female employees of Lawson State Community College, also intervened in this action. Davis and Threatt sought to represent an overlapping class of black female professionals employed in the postseeondary system. The parties to the proposed decree stipulated to the certification of a “sub-class of all black citizens represented by Humphrey Shuford and all women represented by Johnson and Newton, which is further and more specifically defined as a sub-class of all black female 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.” The court certified that sub-class, with Davis and Threatt as class representatives. The subclass makes essentially the same allegations regarding employment discrimination against black women resulting from unbridled presidential discretion as the female class makes for all women and the Shuford class made for all African-Americans. The court approved a partial consent decree settling the claims of and affording relief to the Shuford class. Shuford v. Alabama State Bd. of Educ., 846 F.Supp. 1511 (M.D.Ala.1994). A description of the major provisions of the decree follows. The Shu-ford decree requires that the Alabama State Board of Education adopt a non-discriminatory equal employment and promotion policy for the postsecondary system. The decree also sets numerical employment goals. The decree establishes as a goal that 25% of all college presidents (schedule A) 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. The decree sets a goal for each college that, by the end of fall quarter 1996, the percentage of black employees in each of the three categories be equal to at least the number which represents 75% of the percentage of blacks in the primary service area of the college. The decree further sets sequential goals for the percentage of blacks employed system-wide in each of the three categories: 21% by the end of fall quarter 1995, 23% by the end of fall quarter 1997, and 25% by the end of fall quarter 1999. The goals, however, are not to be construed as quotas. Additionally, the “decree shall not be construed to require the Defendants or any of the colleges to hire or promote any person, regardless of race, who is not qualified for the position in question, or to preclude them from hiring or promoting the best qualified applicant regardless of race.” Id. at 1585 (language of Shuford decree). The Shuford decree also establishes a statewide bank of black applicants and requires 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. Each president must appoint one or more recruitment-and-selection committees — whose membership shall be at least 40% black — to review recruitment procedures and screen and recommend applicants, and the president must justify his or her decision in writing. After approval of the Shuford decree, Johnson, Newton, Davis, and Threatt, together with the defendants, filed a joint motion to approve a proposed partial consent decree regarding their claims. The court tentatively approved this decree, known as the “Johnson decree,” subject to notice and an opportunity for objections at a fairness hearing; approved the form of notice; and required the defendants to distribute the notice to all employees in the state postsecond-ary system employed in a position covered by the decree. Twenty-six white male employees submitted objections. The court held two fairness hearings at which it received documentary evidence and heard testimony from Johnson in support of the relief embodied in the decree. The female plaintiffs and the defendants also provided a joint eviden-tiary submission in support of the decree. Two of the objectors, Moncrief and Davis, intervened to challenge the sex-conscious provisions of the Johnson decree. Moncrief and Davis submitted evidence in opposition to the decree. After considering the decree, the court ordered the parties to respond to a number of concerns. In response, the sub-class of black women submitted further evidence. Additionally, the female plaintiffs, the defendants, and Moncrief and Davis entered into a stipulation as to how the decree should be interpreted to ensure its legality. As part of the stipulation, Moncrief and Davis dropped their objections to the Johnson decree. The outline of the Johnson decree, which closely tracks the Shuford decree, is as follows. The Alabama State Board of Education must adopt a written 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 race and sex, and that “all persons participating in selection procedures for professional employees shall take all action necessary to foster black persons and women, including black women, having equal and effective participation in the personnel decision-making process.” The decree sets a number of employment goals. There are two separate goals for the class of women. First, the decree treats schedule A separately from other positions and establishes as a goal that 25% of all college presidents shall be women by the end of fall quarter 1996, 33% by the end of fall quarter 1999, and 50% by the end of fall quarter 2005. Second, the decree sets as a goal that 50% of the people employed at each college on each of schedules B, Cl, C2, C3, and D shall be women by the end of fall quarter 2005. The decree also sets goals for the sub-class of black women that correspond to half of the goals approved for all African-Americans in the Shuford decree. The goal for schedule A is that 12.5% of all college presidents be black women by the end of fall quarter 1996. The decree sets two types of goals for three categories of remaining covered positions: schedules B and Cl, schedules C2 and C3, and schedule D. First, the decree sets a goal for each college that, by the end of fall quarter 1996, the percentage of African-American women employees in each of the three categories be 37.5% of the percentage of blacks in the primary service area of each college. Second, the decree sets sequential goals for the percentage of black women employed systemwide in each of the three categories of positions: 10.5% by the end of fall quarter 1995, 11.5% by the end of fall quarter 1997, and 12.5% by the end of fall quarter 1999. The goals for African-American women follow the Shuford decree in addressing both the institutions and the system as a whole because, without targets for each institution, historically black institutions would “round-up” the system-wide average allowing historically white institutions to ignore the race discrimination problem. According to two of the stipulations reached by the parties, the court interprets the Johnson decree as follows: “1. The Johnson Decree requires only that women, including black women, receive equal and non-discriminatory treatment by the Defendants in making employment decisions. The Johnson Decree does not require or permit any preferences for women, including black women, in the decision-making process. “2. In considering qualified persons for vacancies, the Defendants shall use valid job-related selection procedures, and all candidates should be fully considered and evaluated. No jobs should be set aside or reserved on the basis of race or gender. The Johnson Decree should not be interpreted as requiring or as permitting the hiring or promotion of less qualified persons on account of their gender or race in order to meet the goals of the Johnson Decree.” These stipulations will be examined in depth later in order to determine whether the decree is legal. For now, it is enough to note that the goals are not to be construed as quotas or set-asides. The non-attainment or over-attainment of any of them is not a per se violation of the decree, and the court can modify the goals. Further, the decree does not require or permit any college to hire or promote a woman, black or white, who is less qualified for the position in question in order to meet the goals. Women are not even permitted preferences under the decree. Finally, the decree does not require that any current employee be terminated or adversely affected in his or her employment for the sake of achieving the goals. The Johnson decree extends to black and white women the recruitment procedures of the Shuford decree. The statewide bank of African-American applicants created by the Shuford decree will be expanded to include female applicants. The chancellor is required to employ various recruiting techniques to identify and attract qualified women as well as blacks. College presidents must obtain the names of all relevant female applicants and black applicants from the statewide bank when a vacancy arises. The provision of the Shuford decree requiring that each college president appoint one or more reeruitment-and-selection committees for the purpose of reviewing recruitment procedures and screening and recommending applicants is modified to require that the membership not only be at least 40% African-American but be at least 50% female. The process for filling vacancies is governed by the Shuford decree and reaffirmed in the Johnson decree. 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 invited for an interview by a selection committee. The committee must recommend three applicants to the college president, who must choose from the three and justify the decision in writing. A president may reopen the application and selection process if he or she deems it necessary to comply with the objectives of the decree. Under the terms of the proposed decree, the court will retain jurisdiction over systemic relief in the decree until the end of the year 2005. Other provisions in the Shuford and Johnson decrees require college presidents to follow certain procedures when making lateral transfers, hiring temporary employees, and making layoffs to ensure that such practices are not used to thwart the goals of the decrees. The decrees also require detailed reporting for monitoring purposes. The proposed decree includes individual relief for Johnson, who will receive $45,000 in compensatory damages. The decree will also dismiss, with prejudice, Johnson’s individual claims against the defendants. The decree allows Newton, Davis, and Threatt to have their individual claims heard separately. The decree also dismisses the individual defendants in their individual capacities. II. STANDARDS FOR REVIEW OF CONSENT DECREES It is well established that voluntary settlement is the preferred means of resolving class-action employment discrimination lawsuits. 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 susceptible 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. Piambino v. Bailey, 757 F.2d 1112, 1139 (11th Cir.1985), cert. denied, 476 U.S. 1169, 106 S.Ct. 2889, 90 L.Ed.2d 976 (1986); Pettway, 576 F.2d at 1169. For example, the interests of the class lawyer and the class may diverge, or some members of the class may wrongfully compromise or “sell-out” the interests of other members. Pettway, 576 F.2d at 1169. As part of determining fairness, adequacy, and reasonableness, the court must ensure that the settlement is not collusive. Piambino, 757 F.2d at 1139. Finally, the court has the duty of ensuring that the settlement is not illegal or against public policy. United States v. City of Alexandria, 614 F.2d 1358, 1362 (5th Cir.1980); Harris v. Graddick, 615 F.Supp. 239, 241-42 (M.D.Ala.1985). Before resolving these concerns, the court must ensure that all interested parties were informed of the settlement and had the opportunity to voice their objections. Rule 23(e) of the Federal Rules of Civil Procedure requires that class members be notified of the settlement. Further, the Civil Rights Act of 1991 precludes challenges to a consent judgment resolving employment discrimination claims from those non-class members who had actual notice of the proposed decree and a reasonable opportunity to present objections. 42 U.S.C.A. § 2000e-2(n)(l)(B) (West 1994). 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 decree. Notices were also posted in conspicuous places at each institution and addressed to all employees and to all blacks and women who are, have been, or may become candidates for employment in or promotion to the covered positions. The notices described the 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. The court held a fairness hearing on June 22, 1994, and a supplemental fairness hearing on July 28, 1994, to seek the views of both class and non-class members. The notice was adequate to inform all interested parties about the provisions of the decree. The notice also adequately informed non-class member employees that the decree might adversely affect their interests. The fairness hearings and opportunity for written objections were adequate to solicit and determine the views of class members and non-class member employees. In sum, the notice and fairness hearings were sufficient under both Rule 23(e) and the Civil Rights Act of 1991. III. WHETHER THE DECREE IS FAIR, ADEQUATE, AND REASONABLE The court recently set out factors it may examine in deciding whether a settlement is fair, adequate, and reasonable. White v. State of Alabama, 867 F.Supp. 1519, 1533 (M.D.Ala.1994). These factors are as follows: (1) the views of the class members; (2) the views of class counsel; (3) the substance and amount of opposition to the settlement; (4) the possible existence of collusion behind the settlement; (5) the stage of the proceedings; (6) the likelihood of success at trial; (7) the complexity, expense, and likely duration of the lawsuit; and (8) the range of possible recovery. See Leverso v. South-Trust Bank of Alabama, Nat. Assoc., 18 F.3d 1527, 1530 n. 6 (11th Cir.1994); Bennett v. Behring Corp., 737 F.2d 982, 986 (11th Cir.1984). A. Views of Class Members 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. White, 867 F.Supp. at 1533; Shuford, 846 F.Supp. at 1517. Johnson testified at the fairness hearing that she had heard no objections to the decree from women or men. The court also received testimony in support of the decree in the form of affidavits and depositions. Of the large number of class and sub-class members who received notice, none made an objection known to the court. The court concludes, therefore, that the class and sub-class are overwhelmingly in support of the proposed partial decree. See White, 867 F.Supp. at 1534; Shuford, 846 F.Supp. at 1517; cf. Reynolds v. King, 790 F.Supp. 1101, 1109 (M.D.Ala.1990) (majority’s silence may be, but is not always, indicative of classwide support). Particularly because there have been no objections filed by class or sub-class members, the court has no reason to suspect that the proposed decree treats any portion of the class or sub-class unfairly. See White, 867 F.Supp. at 1534; Shuford, 846 F.Supp. at 1519 & n. 16. There appears to be no overt conflict within the class or sub-class. Although the proposed decree provides monetary damages only to Johnson, it does not preclude or in any way limit suits by other individuals 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. When a “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’ ” Paradise v. Wells, 686 F.Supp. 1442, 1445 (M.D.Ala.1988) (quoting Pettway, 576 F.2d at 1217). The great weight accorded majority opinion in this instance favors approving the decree. B. Views of Class Counsel The judgment of class counsel is also important in addressing the fairness, adequacy, and reasonableness of a consent decree. Pettway, 576 F.2d at 1215. Counsel for the female plaintiffs include a number of prominent and respected civil rights attorneys. They argue that the decree is fair, adequate, and reasonable, and the court respects their views. C. Substance and Amount of Opposition to the Decree White male employees of the postsecond-ary system submitted 26 essentially identical written objections. The objectors claimed that the settlement would hinder their job opportunities, proposed excessive goals, and would unfairly favor blacks and women. After intervening, Monerief and Davis raised additional objections which are, in.summary form, as follows: (1) the decree permits the defendants to favor blacks and women without regard to relative qualifications, (2) the decree’s goals effectively require quotas, (3) the goals are not sufficiently based on government interests and are not sufficiently related to those interests, (4) the goals are not precise enough, (5) white males are unnecessarily burdened, (6) the goals act to maintain rather than achieve a balanced workforce, (7) the selection procedure and reduction-in-foree provisions unfairly provide preferences for blacks and women, (8) the requirement that the recruitment-and-selection committees include a certain percentage of blacks and women is illegal, and (9) the defendants should be required to undertake systemwide reform. Most of the objections pertain to the legality of the decree, which the court addresses in a later section. The only objection pertaining to fairness, adequacy, or reasonableness is that the decree inadequately reforms the postsecondary system’s employment practices. Because Monerief and Davis have since dropped this objection and the other objectors do not raise it, the court does not need to address the question. D. Existence of Collusion There has been no charge that the decree was a product of collusion between the parties. There is no evidence that counsel or the named plaintiffs benefit from the decree at the expense of members of the class or sub-class. Although Johnson is afforded individual monetary relief, this does not adversely affect the rights of the class or sub-class. Further, there is no evidence that the parties’ negotiations were anything other than arms-length. E. Other Factors The remaining four factors are interrelated: the stage of the proceedings; the likelihood of success at trial; the complexity, expense, and likely duration of the lawsuit; and the range of possible recovery. This litigation has been ongoing for a number of years. The parties have had ample opportunity to evaluate the strengths and weaknesses of their respective positions. They have also had the benefit of the court’s views on the closely-related Shuford decree. The issues presented are complex and would have required a contentious trial. The determination of the parties to settle on relief comparable to that afforded by the Shuford decree was reasonable. In light of the above considerations, the court has independently evaluated the fairness, adequacy, and reasonableness of the proposed settlement. “A settlement is in large measure a reasoned choice of a certainty over a gamble, the certainty being the settlement and the gamble being the risk that comes with going to trial.” Paradise, 686 F.Supp. at 1446. As a result, the question is not “whether the proposed consent decree is the best deal possible,” but whether it is “at a minimum, fair, adequate, and reasonable.” Id. at 1448. The decree should be a significant benefit to class members. It forbids discrimination and 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 reeruitment-and-selection committees at each institution will be at least 40% African-American and 50% female. This requirement ensures that blacks and women will be involved in the decision-making process. The decree requires recruitment of qualified African-Americans and women so that they will be well-represented in the applicant pool. Furthermore, presidents must justify their employment decisions by written explanation. 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 decree is not undermined by the abuse of certain “secondary” employment practices such as transfers and the use of temporary workers. Finally, safeguards for fair treatment of all candidates are present throughout the process, ending with periodic review by the parties and the court. Based on the above considerations, the proposed partial consent decree is fair, adequate, and reasonable. IV. WHETHER THE DECREE IS LEGAL AND GOOD PUBLIC POLICY The court must also address whether the proposed partial consent decree is legal. Because the decree involves affirmative action undertaken by a public employer, it must be analyzed under both Title VII of the Civil Rights Act of 1964 and the equal protection clause of the fourteenth amendment to the United States Constitution. In re Birmingham Reverse Discrimination Employment Litig., 20 F.3d 1525, 1536 (11th Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 1695, 131 L.Ed.2d 558 (1995). A consent decree is subject to the same analysis as a voluntary affirmative action plan. Id. at 1534. Because the equal protection clause requires different levels of scrutiny for race and sex, the court will analyze the provisions regarding black women separately from the provisions affecting all women. Under the equal protection clause, the court must apply strict scrutiny to the race-conscious relief in the decree. Adarand Constructors, Inc. v. Pena, — U.S. -, -, 115 S.Ct. 2097, 2113, 132 L.Ed.2d 158 (1995); City of Richmond v. J.A. Croson Co., 488 U.S. 469, 498-508, 109 S.Ct. 706, 724-30, 102 L.Ed.2d 854 (1989) (majority opinion applies strict scrutiny); In re Birmingham Reverse Discrimination Employment Litig., 20 F.3d at 1544. Sex-conscious relief, however, is subject to intermediate scrutiny. Ensley Branch, NAACP v. Seibels, 31 F.3d 1548, 1579-80 (11th Cir.1994). Both the sex- and race-based provisions are also subject to analysis under Title VII. The standards for affirmative action under Title VII and the equal protection clause are somewhat different. 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). The differing standards will be addressed for both sex and race. The court begins by addressing the sex-conscious provisions of the decree. This examination is split into two parts. The first presents a new method of looking at affirmative action that is appropriate to this decree. The second performs a traditional analysis. After these two parts, the court turns to the race-conscious provisions of the decree. A. Legality of Sex-Conscious Provisions Based on the Distinction Between Affirmative Action Used for Inclusion and Exclusion The words “affirmative action” have in recent times taken on a monolithic negative connotation. This is unfortunate for at least two reasons. First, much affirmative action has been helpful in rectifying a long history, which is not yet over, of discrimination in this country. This reason attacks the negative connotation head on by arguing for the utility of affirmative action. Second, there exists a wide variety of affirmative action techniques, with different consequences, each of which should be analyzed on its own merits. Obscuring the differences among varying types of affirmative action has made deciding when they are justified difficult. Although affirmative action’s utility is the more important of the two reasons from a policy perspective, it is not the court’s focus in this opinion. The current public debate will hopefully allow all interested parties to discuss the utility of affirmative action. The court instead will focus on the differences among various affirmative action methods, distinctions that the public debate has often missed and that frequently escape direct judicial recognition as well. There are two basic ways to approach affirmative action: through inclusion or exclusion. Inclusive affirmative action techniques have as their purpose ensuring that the pool of candidates is as large as possible. For example, the primary inclusive form of affirmative action is recruitment, which generally attempts to expand the applicant pool to include more women or minorities. Recruitment and other techniques of inclusion do not affect the selection process for hiring or promotion. Rather, inclusive techniques seek to ensure that as many qualified candidates as possible make it to the selection process. In contrast, affirmative action through exclusion usually works to select some candidates rather than others from a pool. Such techniques include setting selection goals for vacancies, requiring selection quotas for vacancies, and displacing workers of a particular sex or race through layoffs. These affirmative action techniques, to varying degrees, have the potential to help minorities and women actually be selected at the expense of someone else. Of course, selection by necessity requires excluding some people. The concern is discriminatory exclusion that causes harm to third parties, as these examples suggest. The court is unaware of prior decisions focusing on the difference between inclusion and exclusion as the deciding principle in this context. Perhaps this is because, unlike this case, affirmative action decisions primarily if not solely concern techniques of exclusion. The distinction between inclusion and exclusion, however, arises from the accepted doctrine that, as part of an inquiry into legality, courts must examine the consequences of affirmative action on third parties. See, e.g., United States v. Paradise, 480 U.S. 149, 171, 182-83, 107 S.Ct. 1053, 1066, 1072-73, 94 L.Ed.2d 203 (1987) (plurality opinion); id. at 197, 107 S.Ct. at 1080 (O’Connor, J., dissenting); Seibels, 31 F.3d at 1576, 1577; Shuford, 846 F.Supp. at 1531. Inclusive techniques impose no or slight adverse effects on third parties and are easier to justify than exclusion, which has significant potential to cause adverse consequences. See Shuford, 846 F.Supp. at 1531 (comparing almost burdenless recruitment procedures to greater burden of selection goals). Even within the category of exclusion, techniques that have greater adverse effects are harder to justify. See Paradise, 480 U.S. at 182-83, 107 S.Ct. at 1072 (comparing disruption of layoffs to more diffuse burden of promotion quotas). The power of the distinction between inclusion and exclusion as an analytical tool is apparent throughout the examination of the sex-conscious provisions of the Johnson decree. At the heart of the distinction is the recognition that, as the Supreme Court put it: “Qualified white candidates simply have to compete with qualified black candidates.” Id. at 183, 107 S.Ct. at 1073. Including more qualified candidates in the pool is, as seems obvious and as will be discussed below, both proper and desirable. Therefore, techniques of inclusion do not require the traditional Title VII and equal protection analysis that courts have used for techniques of exclusion. The court now tons to the Johnson decree to see which of its provisions have the potential to be illegal. In practice, this means identifying the sex-conscious provisions of the decree. Just because a provision takes sex into account does not make it illegal. The nature of each of the sex-conscious provisions must be looked at to determine legality. The following five provisions that take sex into account must be examined. 1. Noro-Discrimination on the Basis of Sex The decree provides for a policy of non-discrimination on the basis of sex. The establishment of this policy requires taking into account discrimination on the basis of sex. The policy is therefore sex-conscious, but cannot be illegal because it fulfills the mandate of the equal protection clause. The non-discrimination provision illustrates that taking sex into account is not always illegal. In fact, because non-discrimination on the basis of sex is required by law, the failure to take sex into account to insure non-discrimination can be illegal. This should not be surprising because non-discrimination is the foundation of inclusion, while discrimination is a basis of exclusion. 2. Sex-Based Employment Statistics The decree provides for yearly reporting requirements designed to keep track of the number of women employed by the postsecondary system. Using sex as a relevant factor in compiling employment statistics does not cause harm because there is no exclusion. Although the tracking provisions are sex-conscious, they merely recognize sex discrimination rather than perpetuate it. There is nothing improper about taking sex into account as a diagnostic tool in an attempt to ascertain whether women are being discriminated against. The failure to take sex into account can result in the failure to recognize sex discrimination. The measures taken to remedy such discrimination could be illegal, but the attempt to ascertain whether there is a problem and whether progress is being made should be encouraged. 3. Expanding the Pool of Women The decree incorporates procedures designed to recruit qualified women. Relat-edly, the decree allows college presidents to reopen the application and selection process to meet the decree’s remedial objectives. Reopening the process to include more women, like recruiting, expands the pool of applicants and increases competition. The purpose of both of these provisions is to increase the number of applicants considered in order to obtain the best candidates. The provisions are not aimed at the actual selection process. The crucial distinction is between expanding the applicant pool and actually selecting from that pool. Expanding the pool is an inclusive act. No one can rightly complain because he has been passed over for a more qualified candidate even if that candidate was recruited from a women’s college. Exclusion occurs if, for example, the best candidate from the expanded pool fails to get the job because he was passed over for a woman. This can only happen at the selection stage, which occurs after the pool expansion process. Reopening the application and selection process and recruiting are always neutral with respect to selection if they are inclusive. For this reason, there generally need be no basis for implementing these inclusive procedures. Under some circumstances, however, these affirmative action techniques could act to exclude. This presents an entirely different situation. For instance, if the postsee-ondary system began recruiting at black and women’s colleges and stopped recruiting at Auburn, this would be an instance of exclusion. In order to be truly inclusive, recruiting must be balanced. Similarly, reopening the application and selection process could be merely a pretext to hire someone not in the original pool. A president cannot open up the process for the purpose of selecting or avoiding someone if the action is to remain inclusive. The court has a responsibility to ensure affirmative action techniques that purport to be indusionary are actually inclu-sionary. In this instance, the techniques for expanding the applicant pool are inclusionary on their face. There is no suggestion that either reopening the process or conducting affirmative recruitment will cause any harm to qualified applicants other than increased competition. Of course, these techniques could be used as tools of exclusion as applied, which would justify a later attack. The procedures for expanding the pool of applicants contemplated by the decree are inclusive in nature and, therefore, justifiable without resort to traditional Title VII and equal protection analysis. At least with regard to recruitment, ease law compels this result. Perhaps in an indirect recognition of the distinction between inclusion and exclusion, the Eleventh Circuit Court of Appeals stated on two recent occasions that affirmative recruitment is a neutral measure. Seibels, 31 F.3d at 1571 (noting “several race-neutral efforts to cure past and present discrimination” including encouraging applications from blacks and waiving application fees and adding that the “decrees themselves required strengthened recruitment of blacks and women”); Peightal v. Metropolitan Dade County, 26 F.3d 1545, 1557-58 (11th Cir.1994) (considering recruitment of minorities and women at high schools and colleges neutral). The recruiting procedures described in Seibels and Peightal are not neutral under the ordinary meaning of the term because they take sex and race into account. The Eleventh Circuit thus recognized that race and sex can be taken into account without traditional constitutional and statutory justification, but did not explain its reasoning. The distinction between inclusion and exclusion supplies a likely reason why affirmative recruiting was considered race- and sex-neutral. The recruiting procedures described in Seibels and Peightal act to include. Whites and men are harmed only by competition from qualified candidates, which is not an appropriate objection. Although labeling recruitment of women and minorities neutral with respect to sex and race is somewhat misleading, the important point is that inclusive recruitment is readily justifiable. Sei-bels and Peightal appear to be using the concept of race and sex neutrality as a substitute for neutrality with respect to selection with its implications of inclusion. There are two strong public policy arguments behind the implicit rationale in Seibels and Peightal and the explicit holding here. If employers were not allowed to use recruitment procedures without a showing of discrimination sufficient to meet the traditional requirements of the equal protection clause and Title VII, they would be reluctant to pursue such procedures because they would open themselves up to liability, which might require paying damages. See Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 290-91, 106 S.Ct. 1842, 1855-56, 90 L.Ed.2d 260 (1986) (O’Connor, J., concurring) (noting importance of incentives for voluntary compliance with civil rights laws) (cited with approval in Seibels, 31 F.3d at 1566). But recruitment of women and minorities is an excellent way to avoid lawsuits. Reopening the application and selection process is an extension of this principle. If employers rely on inclusive methods, avoiding discrimination problems will not have adverse effects on third parties. Courts should not place obstacles in the way of attempts to comply with the law and avoid discrimination lawsuits unless required to do so by the constitution or by statute. If employers get rid of discriminatory procedures and aggressively recruit minorities and women, more controversial affirmative action measures will rarely be necessary. The law should encourage rather than discourage this development. The second policy consideration is fostering integration. Society has a strong interest in its diverse members getting along. This interest is furthered by interaction in the workplace. Although bringing about integration through policies of exclusion can be counterproductive, when integration results from inclusion, society achieves a benefit at no cost. Relatedly, employers have an interest in including people from all backgrounds in order to provide better service. Hence, the court cannot agree with the following statement regarding school desegregation: “ ‘Racial isolation’ itself is not a harm; only state-enforced segregation is.” Missouri v. Jenkins, — U.S. -, -, 115 S.Ct. 2038, 2065, 132 L.Ed.2d 63 (1995) (Thomas, J., concurring). It is true that “there is no reason to think that black students cannot learn as well when surrounded by members of their own race as when they are in an integrated environment.” Id. Nor should those who desire, for whatever reasons, to limit private personal exchanges to one race be prohibited from doing so. But to say this is to focus too narrowly. Just because racial isolation does not hamper the ability of blacks to learn or may in some contexts be legal does not mean that there is no harm. As our society drifts more and more into separate racial camps, it cannot be enough simply to say that this is harmless because it is voluntary and uncoerced by the state. Rather, the harm manifests itself in other ways that affect both minority and majority populations. Ignorance, hostility, and misunderstanding are all perpetuated by even voluntary racial isolation in education, housing, and employment. Society has an interest in combating the harms of isolation. And with due respect to private free choice and the ability of each of us proudly to retain his or her varying and rich racial and cultural heritage, the government still has an important role in combating these social harms by encouraging an integrated environment. People of all races, not just blacks, benefit from integration. 4. Employment Goals The decree sets out employment goals and requires the defendants to make good faith efforts to reach those goals, although the non-attainment of the goals is not a per se violation of the decree. The term “employment goals” can mean many things. For instance, goals can be used for exclusion as a substitute for quotas. Goals can also be used in an inclusive way along with tracking requirements as diagnostic tools. The question is whether employment goals are selection goals that affect the process of selection or diagnostic goals that measure the efficacy of pool expansion techniques such as affirmative recruitment. Employment goals cannot be looked at in the abstract because the potential for exclusion and adverse effects is generally only present when they are used in the selection process. The aim of the goals is the key to determining whether or not they are appropriate. Accordingly, this portion of the decree must be read in light of the stipulations reached by the female plaintiffs, defendants, and intervenors. These stipulations clarify that the Johnson decree requires that women “receive equal and non-discriminatory treatment by the Defendants in making employment decisions.” It “does not require or permit any preferences for women.” Further, not only can no jobs be set aside or reserved for women, but the decree does not permit “the hiring or promotion of less qualified persons on account of their gender or race in order to meet the goals.” The court examines the meaning of the goals in light of these stipulations. The goals certainly are not quotas because jobs cannot be set aside or reserved for women. Another possibility is that the goals are selection goals, which are distinguished from quotas on flexibility grounds. That is, a selection goal might allow some preference for women as long as they were qualified, but would not require choosing unqualified women to fill a rigid number of slots. The goals in the decree, however, do not even rise to the level of selection goals because if there can be no preferences for women and less qualified women cannot be chosen, there is no way for the defendants to meet the goals other than through (1) inclusive, sex-conscious techniques like recruitment and (2) changes to the selection procedures that are not disadvantageous to men being selected for the covered positions other than by increasing competition. Inclusive sex-conscious techniques are acceptable for the reasons already stated. The changes to the selection procedures, aside from the use of recruitment-and-selection committees which is discussed below, are sex-neutral in the strict sense. For example, some changes include advertising all vacancies and justifying employment decisions in writing. These changes do not make the goals selection goals. In the context of the Johnson decree, the primary purpose of the goals is to measure the effectiveness of the decree’s sex-neutral selection procedures and inclusive recruitment. In this respect, the goals are merely diagnostic tools that have no selection force of their own. They do not permit sex-conscious selection. The goals have a secondary purpose, which is also diagnostic, of suggesting which positions the recruitment procedures should emphasize. That is, recruitment should focus on the salary schedules in which women are most underrepresented. The use of goals as diagnostic tools for measurement and emphasis is not illegal under the equal protection clause or Title VII because diagnostic goals do not contemplate exclusion. 5. Recruitment-and-Selection Committees Finally, the decree provides for a policy requiring the equal participation of women in the personnel selection process. This policy is met through the requirement that the recruitment-and-selection committees, which review recruitment procedures and screen and recommend candidates, have a membership consisting of 50% women. Unlike the rest of the decree, the committees contemplate exclusion. They do so in two analytically distinct ways. First, the screening function of the committees is a technique of exclusion with respect to the selection process for the covered positions. Second, the 50% female requirement acts to exclude with respect to the composition of the committees themselves. Traditional Title VII and equal protection analysis appears necessary. Before proceeding with this analysis, however, the court discusses some reasons why the traditional analysis might not be necessary or appropriate. First, although the screening function of the committees is an exclusion technique in the selection process for the covered positions, it is not exclusion on the basis of sex. Selection is by its nature exclusionary, but such exclusion can be discriminatory or nondiscriminatory. The distinction between inclusion and exclusion is premised on the harmful discriminatory potential of exclusion and the lack of such potential in inclusion. Exclusion that is non-discriminatory does not cause illegal harm. In this instance, there is no potential for discriminatory exclusion because the stipulations forbid the committees from giving preferences to women. The purpose of the committees is to ensure that the most qualified applicants are presented to the president. Although this process by necessity excludes less qualified candidates, it does not do so on the basis of sex. Nondiscriminatory exclusion, which takes place every day, cannot be illegal. If this were the only technique of exclusion, traditional Title VII and equal protection analysis would not be necessary. The other way in which exclusion is present is the 50% quota itself. This technique of exclusion is more troubling. It should be recognized, however, that the quota does not affect the selection process for positions covered by the consent decree. The exclusion takes place with respect to positions on the committees. Although the committee quota is exclusionary in nature, it also has attributes of inclusion. The composition of the committees is inclu-sionary in the sense that there is no tangible harm to third parties. First, there are no special qualifications for serving on the committees. For this reason, requiring that women be represented at the same level as their percentage of the population seems reasonable. There is no reason to think that men are any more qualified to screen applicants and are therefore being adversely affected by the 50% quota. Indeed, from a practical standpoint, traditional Title VII and equal protection analysis, which, as will be explained later, depends heavily on the concept of qualifications, is ill-suited to analyzing the committees. Second, the committee positions are not desirable in and of themselves to the extent that they give an advantage in job opportunities or increase pay. If there is nothing advantageous about serving on the committees, it is hard to see what tangible harm there is in being excluded. Notwithstanding these thoughts, the court has difficulty concluding that the 50% quota does not require traditional Title VII and equal protection analysis. Discriminatory exclusion is problematic even if the harmful effects are intangible. In fact, Title VII specifically states that “privileges of employment” are covered. 42 U.S.C.A. § 2000e-2(a) (West 1994). Serving on the committees could be seen as a privilege. Therefore, the court will apply traditional Title VII and equal protection analysis. B. Legality of Sex-Conscious Provisions Based on Traditional Title VII and Equal Protection Analysis The court relies on the above analysis, based on the distinction between inclusion and exclusion, to find that the decree’s sex-conscious provisions other than the quota for recruitment-and-seleetion committees are legal. The following traditional analysis is necessary only to address the legality of the committees. However, it must be recognized that relying on the distinction between inclusion and exclusion at all is a deviation from general affirmative-action case law. The reason for this is that virtually all, if not all, of these cases concern selection procedures of some sort, generally selection goals or quotas. This opinion does not disregard those precedents, but rather recognizes that precedents developed in the selection-procedure context that focus on exclusion are not applicable to most of the Johnson decree. The Eleventh Circuit has essentially recognized this in its endorsement of affirmative recruitment in Seibels and Peightal. Nevertheless, to be on the safe side, the court will not limit its traditional analysis of legality to the recruitment-and-selection committees, but will examine the sex-conscious provisions of the decree generally. Under a traditional analysis, courts examine sex-conscious provisions under both a constitutional and a statutory standard. As noted earlier, the constitutional standard under the equal protection clause is intermediate scrutiny. Under intermediate scrutiny, “no gender preference can survive unless it is substantially related to an important government interest.” Seibels, 31 F.3d at 1580. In essence, the important-interest prong concerns whether relief is justified, and the substantial-relation prong examines the appropriateness of the remedy. The statutory standard for deciding whether sex-conscious relief is permissible under Title VII involves a similar two-part test. First, the court must determine whether sex-conscious provisions are justified by manifest gender imbalances in traditionally segregated job categories. Johnson, 480 U.S. at 631, 107 S.Ct. at 1451-52; In re Birmingham Reverse Discrimination Employment Litig., 20 F.3d at 1537. Second, if there is such a justification, the court must determine whether the remedy embodied in the decree is proper in that it does not unnecessarily trammel the rights of male employees or absolutely bar their advancement. Johnson, 480 U.S. at 637-38, 107 S.Ct. at 1455; In re Birmingham Reverse Discrimination Employment Litig., 20 F.3d at 1537. The court examines together the justification prongs of the two standards and then turns to the remedy prongs. 1. Justification Prongs a. Defining the Title VII Standard Under Title VII analysis, showing a manifest imbalance entails comparing the percentage of women in the postsecondary system’s work force with women in the labor force who possess the necessary qualifications. Johnson, 480 U.S. at 631-32, 107 S.Ct. at 1452. As the court has already noted in Shuford, it is impossible in this case to develop qualified labor pools because the defendants have not adhered to any objective measure of qualifications. 846 F.Supp. at 1526. The court discussed in depth in Shuford why statistical analysis is unnecessary in the context of strict scrutiny under Croson if historical and anecdotal evidence presents a sufficient case of discrimination. Id. at 1526-27, If this is applicable to strict scrutiny, it must also be true for Title VII, which is less demanding, even though the Title VII test appears to be formulated solely in terms of statistics. Any other holding would make Title VII more restrictive than strict scrutiny, which is inappropriate. Johnson, 480 U.S. at 627 n. 6, 632, 107 S.Ct. at 1449 n. 6, 1452; Shuford, 846 F.Supp. at 1520. In this situation, the standard Title VII analysis is inapplicable, and historical and anecdotal evidence can suffice to justify affirmative action. Under the Eleventh Circuit’s interpretation of Title VII in the context of a consent decree, a defendant need not declare that it violated discrimination laws but must have a “strong basis in evidence” from which to conclude that it had engaged in discrimination. In re Birmingham Reverse Discrimination Employment Litig., 20 F.3d at 1539-40. Although a defendant need not make formal findings of its own discrimination, there must be some finding of past discrimination. Thus, it is the court’s responsibility to make a factual determination of whether there is a strong basis in evidence of prior discrimination. Id. b. Defining the Intermediate Scrutiny Standard With regard to intermediate scrutiny, the court must look behind the recitation of a benign purpose to ensure that sex-based classifications redress past discrimination. See Califano v. Webster, 430 U.S. 313, 317, 97 S.Ct. 1192, 1194-95, 51 L.Ed.2d 360 (1977) (per curiam). “The principal purpose of intermediate scrutiny ... is to ensure that gender classifications are based on reasoned analysis rather than archaic stereotypes.” Seibels, 31 F.3d at 1581. When, as here, it is not alleged that the basis for affirmative action was stereotypes, the question is “whether there is evidence of past discrimination in the economic sphere at which the affirmative action program is directed.” Id.; see also Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 728, 102 S.Ct. 3331, 3338, 73 L.Ed.2d 1090 (1982) (“It is readily apparent that a State can evoke a compensatory purpose to justify an otherwise discriminatory classification only if members of the gender benefited by the classification actually suffer a disadvantage related to the classification”); Coral Constr. Co. v. King County, 941 F.2d 910, 932 (9th Cir.1991) (“Some degree of discrimination must have occurred in a particular field before a gender-specific remedy may be instituted in that field”), cert. denied, 502 U.S. 1033, 112 S.Ct. 875, 116 L.Ed.2d 780 (1992). The discrimination need not be by the defendants, but can be societal in nature. Seibels, 31 F.3d at 1580. To ask whether there is evidence of past discrimination in the relevant economic sphere poses three preliminary questions which must be answered before assessing the evidence. The first question is how to define the correct economic sphere. The second question is how much evidence must be presented to support an important government interest. The third question is what types of evidence are relevant. The court will address these questions and also note any differences with respect to Title VII. i. Relevant Economic Sphere The first question is how to define the relevant economic sphere to be examined for evidence of past discrimination. There are a number of different possibilities. The economic sphere could be defined broadly as all positions in Alabama’s postsecondary system. A narrower definition would encompass just the positions covered by the decree: administrative and faculty positions in the postsecondary system. An even narrower definition would require each salary schedule covered by the decree to be its own economic sphere. Finally, an extremely narrow definition would define each college within the postsecondary system as its own economic sphere. A careful reading of Seibels suggests that analyzing each salary schedule or college as a separate economic sphere is unnecessary. The consent decrees in Seibels applied affirmative action for blacks and women to all job classifications in the City of Birmingham, Alabama. 31 F.3d at 1556-57. The Eleventh Circuit found, using strict scrutiny, that the evidence supported a compelling government interest in remedying discrimination against blacks in the police and fire departments. Id. at 1567. This evidence, however, did not suffice to justify affirmative action in other departments as required by the decrees. Id. In marked contrast, in examining the sex-conscious provisions of the decrees under intermediate scrutiny, the Eleventh Circuit used only evidence regarding the police and fire departments to find an important government interest in remedying discrimination against women employed by the city generally. See id. at 1581. The description of this analysis points out a crucial difference between strict and intermediate scrutiny regarding the particularity of evidence required to show the necessary government interest. Based on the analysis in Seibels, it appears that intermediate scrutiny does not require that discrimination be shown in each segment of an entity covered by a consent decree. The narrower economic spheres contemplated above should therefore be rejected. The court also rejects the overly broad definition of all positions in the postsecondary system because the positions covered by the decree should n