Full opinion text
RALPH B. GUY, Jr., Circuit Judge. Plaintiffs appeal the district court’s dismissal, pursuant to Fed.R.Civ.P. 56, of their “reverse discrimination” civil rights actions. Although we find that the race-based promotions at issue here were supported by a “compelling interest,” we conclude that a genuine issue remains as to whether the promotions were made pursuant to a “narrowly tailored” remedy. We therefore vacate the summary judgments for defendants and remand these eases to the district court. I. A. In 1974, the United States Department of Justice brought a civil rights action against the City of Memphis, Tennessee, in which it alleged that the City had engaged in race and gender discrimination in the hiring and promotion of City employees. To settle this lawsuit, the City and the United States entered into a consent decree that was approved by the United States District Court for the Western District of Tennessee in November 1974. In the decree, the City denied that it had unlawfully discriminated but admitted that certain of its past practices may have given rise to an inference that it had engaged in unlawful discrimination. The decree stated that its purpose was “to insure that blacks and women are not placed at a disadvantage by the hiring, promotion and transfer policies of the City, and that any disadvantage to blacks and women which may have resulted from past discrimination is remedied so that equal employment opportunities will be provided to all.” (Eason App. at 19.) Moreover, the decree provided: [I]n determining whether th[is] purpose has been achieved, an appropriate standard of comparison is the proportion of blacks and women in the Shelby County civilian labor force. The City, therefore, agrees to undertake as its long term goal in this decree, subject to the availability of qualified applicants, the goal of achieving throughout the work force proportions of black and female employees in each job classification, approximating their respective proportions in the civilian labor force. (Eason App. at 19-20.) The decree further stated that the City could apply for dissolution of the decree at any time after five years subsequent to the date of its entry. The City was sued again when, in August 1975, the Afro-American Police Association filed in the same district court an action in which it alleged that the promotion practices of the Memphis Police Department were ra-ciálly discriminatory. To settle this action, the parties entered into a consent decree that was approved by the district court in March 1979. In the stipulation of facts that was submitted along with the decree, the City denied that it had “intentionally engaged in unlawful employment discrimination with respect to the employment of blacks on the Memphis Police Department in the period since March 24, 1972,” but admitted that “historically blacks have been excluded from or limited in hiring or promotional opportunities within its police department[.]” (Aiken Plaintiffs’ Brief Addendum at 22.) The decree declared that its purpose was “to prohibit unlawful discrimination in the promotional practices of the Memphis Police Department, and to eliminate any effects of prior discrimination.” (Aiken App. at 164.) The decree thus provided that, “to the extent that qualified black applicants are available ... the percentage of promotions awarded to blacks at each rank shall constitute at least the percentage which blacks constitute in the next rank below.” (Aiken-App. at 164.) In 1977, the City was sued once again. Carl Stotts, a black employee of the Memphis Fire Department, filed in the same district court an action in which he alleged that the fire department had racially discriminated in its hiring and promotion practices. The Stotts litigation thereafter was certified as a class action and consolidated with another lawsuit filed by a different black employee of the Memphis Fire Department. In 1980, the parties to the Stotts litigation entered into, and the district court approved, a consent decree whose purpose was “to remedy the past hiring and promotion practices of the Memphis Fire Department with respect to the employment of blacks and [to continue] the efforts made in the City in hiring and promotions under the [1974] consent de-creet.]” (Eason App. at 63.) The 1980 decree shared with the 1974 decree the goal of “raising] the black representation in each job classification on the fire department to levels approximating the black proportion of the civilian labor force in Shelby County.” (Eason App. at 63.) The City accordingly “adopt[ed] the goal of promoting Black applicants to positions above the rank of private or other entry level job classification in proportion to their representation in the qualified applicant pool for each uniformed rank or civil service classification.” (Eason App. at 64.) The parties to the 1980 decree further agreed that, without regard to the actual percentage of blacks in the lower ranks of the fire department, at least 20% of each year’s promotions would be reserved for blacks. The 1980 decree cautioned, however, that it should not “be construed in such a way to require the promotion [of] the unqualified or the promotion of the less-qualified over the more qualified as determined by standards shown to be valid and non-diserim-inatory[.]” (Eason App. at 64.) In 1981, the City and the United States entered into an “amended consent decree,” in which they agreed that “certain provisions of the [1974] decree have served their purpose, and the goals of [that] decree should be updated to meet present circumstances.” (Eason App. at 77.) The 1981 decree “substitute[d] for the [1974] decree” (Eason App. at 77) and was approved by the district court. The 1981 decree reaffirmed the 1974 decree’s long-term goal of remedying any disadvantage to blacks that may have resulted from past discrimination, and retained, subject to the availability of qualified applicants, “the goal of achieving in the Divisions, and where applicable, the job categories and classifications specified in this decree[,] proportions of black and female employees approximating their respective proportions in the relevant Shelby County civilian labor force.” (Eason App. at 79.) The 1981 decree also provided: Promotional vacancies within the uniformed rank structure of the Police and Fire Divisions shall be filled in accordance respectively with the terms of the consent orders entered on March 20,1979, in Afro-American Police Ass’n v. City of Memphis ... and on April 21, 1980 in Stotts v. City of Memphis .... (Eason App. at 80.) Like the 1980 decree, however, the 1981 decree stated that it was not “intended to require the City to hire unnecessary or unqualified personnel, or to hire, transfer or promote a less qualified person in preference to a better qualified person[.]” (Eason App. at 79.) The 1981 decree further provided that the City could move for its dissolution at any time after March 1,1984, but the City has yet to do so. B. The Aiken litigation concerns Memphis Police Department promotions to the rank of sergeant during the years 1988 and 1989. The Eason litigation concerns Memphis Fire Department promotions to the positions of lieutenant, investigator, and battalion commander during the same years. The promotion process for all of these positions consists of four components: (1) a written examination; (2) an evaluation of the employee’s performance record; (3) seniority points; and (4) an oral interview. After completing this process, each candidate for promotion is assigned a numerical score and placed in rank order. 1. In 1988, the Memphis Police Department made 75 promotions to the rank of sergeant, for which 210 officers competed. After the promotion candidates were placed in rank order, it was discovered that, while 32.4% of the officers in the rank below sergeant (which is patrol officer) were black, only 9.3%, or 7, of the top 75 candidates were black. To meet the consent decrees’ goal of proportionate black promotions, the City promoted not only the 7 blacks among the 75 top-ranked candidates, but also 19 other blacks who were were ranked below the 75th position. Similarly, in 1989, the police department made 94 promotions to the rank of sergeant, for which 177 officers competed. Since only 16%, or 15, of the 94 top-ranked candidates were black, the City promoted, in addition to these 15 candidates, 18 other black candidates who were ranked below the 94th position. The Aiken plaintiffs are white officers in the Memphis Police Department who were denied promotions to sergeant in 1988 and/or 1989, despite having been ranked higher than most of the black candidates who were promoted to sergeant. The Aiken plaintiffs sued the City of Memphis, and both the Memphis Mayor and Director of Police Services in their official and personal capacities. In their complaints, the Aiken plaintiffs alleged violations of their rights under, inter alia, the Equal Protection Clause, and additionally sought to enforce their understanding of the terms of the consent decrees. Defendants thereafter moved for summary judgment. In a brief order, the district court held that the Aiken plaintiffs lacked standing to enforce the decrees and that their equal protection claims were without merit. The court therefore granted defendants’ motion and closed the cases. The Aiken appeal followed. 2. The Memphis Fire Department made 50 promotions to the rank of lieutenant in 1988-89, for which 81 fire privates and fire drivers competed. Since only 15.3% of the department’s fire privates and fire drivers were black, the City adopted the 20% minimum black promotion goal set forth in the 1980 decree. Of the 50 top-ranked candidates, two were black. The City promoted these two candidates as well as nine other black candidates who were ranked below the 50th position. The fire department made two promotions to the rank of investigator in 1989, for which 12 employees competed. Although blacks constituted 34.3% of the employees in the rank below investigator and three blacks were among those competing for the two promotions, neither of the two top-ranked candidates were black! To satisfy the terms of the 1980 and 1981 consent decrees, however, the City promoted a black candidate who was ranked below the 2nd position. In 1988-89, the fire department also made 13 promotions to the position of battalion commander, for which 35 employees competed. Blacks constituted 20% of the employees in the rank below battalion commander, but only one of the 13 top-ranked candidates was black. The City promoted this candidate in addition to three other black candidates who were ranked below the 13th position. The Eason plaintiffs are white employees of the Memphis Fire Department who unsuccessfully competed for the promotions described above. Each of these plaintiffs were ranked higher than most black candidates who received a promotion. Like the Aiken plaintiffs, the Eason plaintiffs sued the City of Memphis, and both the Memphis Mayor and Director of Fire Services in their official and personal capacities. Similarly, in their complaints, the Eason plaintiffs alleged violations of their rights under, inter alia, the Equal Protection Clause, and additionally sought to enforce their understanding of the consent decrees. The City thereafter moved for summary judgment. In another brief order, the district court held that the Eason plaintiffs lacked standing to enforce the decrees and that their equal protection claims were without merit. The district court accordingly granted the City’s motion and closed the cases. The Eason appeal followed. II. We review de novo the district court’s grants of summary judgment. McKee v. Cutter Labs., Inc., 866 F.2d 219, 220 (6th Cir.1989). Summary judgment is appropriate when “the moving party has carried its burden of showing that the pleadings, depositions, answers to interrogatories, admissions and affidavits in the record, construed favorably to the nonmoving party, do not raise a genuine issue of material fact for trial[.]” Gutierrez v. Lynch, 826 F.2d 1534, 1536 (6th Cir.1987). An issue remains for trial if the evidence is such that a jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). On appeal, the Aiken and Eason plaintiffs reiterate their arguments that the City’s use of race-based promotion goals violated their rights under the Equal Protection Clause. That Clause guarantees that no State shall “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const, amend. XIV, § 1. The “central purpose” of the Clause “is to prevent the States from purposefully discriminating between individuals- on the basis of race.” Shaw v. Reno, — U.S.-,-, 113 S.Ct. 2816, 2824, 125 L.Ed.2d 511 (1993). Accordingly, “ ‘[a]ny preference based on racial or ethnic criteria must necessarily receive a most searching examination to make sure that it does not conflict with constitutional guarantees.’” Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 273-74, 106 S.Ct. 1842, 1847, 90 L.Ed.2d 260 (1986) (plurality opinion) (quoting Fullilove v. Klutznick, 448 U.S. 448, 491, 100 S.Ct. 2758, 2781, 65 L.Ed.2d 902 (1980) (opinion of Burger, C.J.)). Thus, in Richmond v. J.A Croson Co., 488 U.S. 469, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989), a majority of the Supreme Court agreed that all governmental classifications by race are subject to “strict scrutiny,” regardless of whether they are supported by a “remedial” or “benign” purpose. Id. at 493-94, 109 S.Ct. at 721-22 (plurality opinion); id. at 520, 109 S.Ct. at 735 (Scalia, J., concurring in the judgment). The City nevertheless suggests that we should subject the promotional remedies set forth in the consent decrees to a lesser degree of scrutiny because the decrees have been judicially approved. This suggestion is foreclosed, however, by the unequivocal language of our opinion in United Black Firefighters Ass’n v. City of Akron, 976 F.2d 999 (6th Cir.1992): Croson holds that all racial preferences instituted by a state actor, even those designed to achieve “racial balance” in a state actor’s workforce, are subject to strict scrutiny_ Croson simply does not exempt consent decrees from its requirements. Id. at 1008 (emphasis in original). Similarly, the City intimates that, in determining whether the decrees’ promotional remedies are constitutional, we should consider ourselves bound to some undefined extent by language contained in our opinion in Stotts v. Memphis Fire Department, 679 F.2d 541 (6th Cir.1982), rev’d sub nom. Firefighters Local Union No. 1784. v. Stotts, 467 U.S. 561, 104 S.Ct. 2576, 81 L.Ed.2d 483 (1984). A majority of the Stotts panel stated that the 1980 decree was constitutional. 679 F.2d at 556. For several reasons, however, we do not consider ourselves bound in any way by that statement. First, and most important, the relevant law has changed considerably since our decision in Stotts. There, we merely asked whether the decree was “reasonable.” Id. at 558. That standard subsequently was singled out for sharp criticism by the Supreme Court, see Wygant, 476 U.S. at 279, 106 S.Ct. at 1849-50 (“The [Sixth Circuit] examined the means chosen to accomplish the Board’s race-conscious purposes under a test of ‘reasonableness.’ That standard has no support in the decisions of this Court”) (plurality opinion), and differs markedly from the strict scrutiny test that we must apply today. Second, there is good reason to doubt that the issue of the constitutionality of the 1980 decree (which was not briefed by the parties in Stotts) was properly before the Stotts court. See Stotts, 679 F.2d at 570 (“Nor has this Court been presented with the contention that the decree constitutes ‘reverse discrimination.’ I dissent from Judge Keith’s sua sponte conclusion that the decree is ‘constitutional.’ ”) (Martin, J., dissenting). Finally, our decision in Stotts was reversed by the Supreme Court, albeit on other grounds. See Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 104 S.Ct. 2576, 81 L.Ed.2d 483 (1984). We therefore conclude that the decrees’ promotional remedies are subject to a strict scrutiny, analysis. “There are two prongs to this examination. First, any racial classification ‘must be justified by a compelling governmental interest.’ Second, the means chosen by the State to effectuate its purpose' must be ‘narrowly tailored to the achievement of that goal.’” Wygant, 476 U.S. at 274, 106 S.Ct. at 1847 (plurality opinion) (citations omitted). When, as here, a race-based affirmative action plan is subjected to strict scrutiny, the party defending the plan bears the burden of producing evidence that the plan is constitutional. The party challenging the plan, however, retains the ultimate burden of proving its unconstitutionality. Brunet v. City of Columbus, 1 F.3d 390, 404-05 (6th Cir.1993), cert. denied sub nom. Brunet v. Tucker, — U.S. -, 114 S.Ct. 1190, 127 L.Ed.2d 540 (1994). Thus, to have been entitled to summary judgment, the City must have satisfied its burden of production and the Aiken and Eason plaintiffs must not have presented evidence that would allow a reasonable jury to conclude that they satisfied their burden of proof. We first consider whether the race-based promotions at issue here were supported by a compelling interest. In United Black Firefighters, we recognized that “a state actor possesses a compelling state interest when its concern is with remedying past discrimination.” 976 F.2d at 1009. But thé existence of societal discrimination alone cannot support a racial classification; rather, the Supreme Court “has insisted upon some showing of prior discrimination by the governmental unit involved before allowing limited use of racial classifications in order to remedy such discrimination.” Wygant, 476 U.S. at 274, 106 S.Ct. at 1847 (plurality opinion). No formal finding of past discrimination by the governmental unit involved is necessary' to determine that a compelling interest exists, Brunet, 1 F.3d at 406, but there must be “strong” or “convincing” evidence of past discrimination by that governmental unit. Croson, 488 U.S. at 500, 109 S.Ct. at 725; United Black Firefighters, 976 F.2d at 1010. It is settled that “[ajppropriate statistical evidence setting forth a prima facie case of discrimination is sufficient to provide a strong basis in evidence to support a public employer[’s] affirmative action plan.” Brunet, 1 F.3d at 407 (emphasis in original); see also Croson, 488 U.S. at 501, 109 S.Ct. at 725. As we explained in United Black Firefighters, “appropriate” statistical evidence involves an examination of the racial composition of the qualified labor pool: The method generally used is to compare the minority percentage in the relevant statistical pool to the minority percentages in the group of persons selected for the positions at issue. The relevant statistical pool is comprised of all persons qualified for the position at issue. Roughly the same percentage of minorities observed in the relevant statistical pool should also be observed in the group of persons selected for the position at issue. Where a gross disparity exists between the expected percentage of minorities selected and the actual percentage of minorities selected, then prima facie proof exists to demonstrate intentional discrimination in the selection of minorities to those particular positions. Such prima facie proof presents a strong basis in evidence to support a finding of a compelling governmental interest. 976 F.2d at 1011 (citations omitted); see also Hazelwood School Dist. v. United States, 433 U.S. 299, 307-09, 97 S.Ct. 2736, 2741-43, 53 L.Ed.2d 768 (1977). In the Aiken litigation, the City presented evidence of a wide disparity between the percentage of black patrol officers and the percentage of black sergeants in the Memphis Police Department during the years 1971-78. In 1971, 11% of the patrol officers were black, but only 5.9% of the sergeants were black. In 1978, 23% of the patrol officers were black, but only 7.5% of the sergeants were black. (Aiken Plaintiffs’ Brief Addendum at 23.) Although such a disparity “is not conclusive as to a finding of discrimination,” Brunet, 1 F.3d at 407 (emphasis in original), the Aiken plaintiffs have not offered any evidence to rebut the inference of discrimination that arises from these statistics. Similar statistics suggest a pattern of racial discrimination in promotions in the Memphis Fire Department. The most junior firefighter position in the department is that of “fire private.” (Eason App. at 64.) In 1979, although 14.3% of the fire privates were black, only 11 of 594, or 1.1%, of the firefighters above that rank were black. Stotts, 679 F.2d at 550 n. 5 (setting forth statistics). The Eason plaintiffs have not offered any evidence to rebut the inference of discrimination that arises from these statistics. The Aiken and Eason plaintiffs argue, however, that these statistics cannot be “strong evidence” of past discrimination because they are not based on the qualified labor pool. Plaintiffs assert that these statistics are based upon an overbroad labor pool, since not all patrol officers and fire privates are qualified for promotion to the next rank. These statistics, however, are far more probative of discrimination than are general work force statistics, which were criticized by the Seventh Circuit in Janowiak v. Corporate City of South Bend, 836 F.2d 1034, 1041-42 (7th Cir.1987), cert. denied, 489 U.S. 1051, 109 S.Ct. 1310, 103 L.Ed.2d 579 (1989). Moreover, the compelling interest inquiry focuses simply on whether discrimination occurred, not on the precise extent of any discrimination that did occur. Thus, we conclude that the statistics presented here are probative enough to satisfy the City’s burden of producing strong evidence that discrimination occurred in the Memphis Police and Fire Departments. Since, as noted above, plaintiffs have not rebutted the inferences that arise from these statistics, we conclude that no genuine issue remains as to whether the race-based promotions in question were supported by a compelling interest. We next consider whether the race-based promotions at issue here were made pursuant to a narrowly tailored remedy. Because “ ‘racial classifications are simply too pernicious to permit any but the most exact connection between justification and classification[,]”’ a governmental classification based on race “must be specifically and narrowly framed to accomplish” its remedial purpose. Wygant, 476 U.S. at 280, 106 S.Ct. at 1850 (plurality opinion) (quoting Fullilove, 448 U.S. at 537, 100 S.Ct. at 2805 (Stevens, J., dissenting)). To determine whether this demanding standard has been met, we look to several factors, including the necessity for the [race-based] relief and the efficacy of alternative remedies; the flexibility and duration of the relief, including the availability of waiver provisions; the relationship of the numerical goals to the relevant labor market; and the impact of the relief on the rights of third parties. United States v. Paradise, 480 U.S. 149, 171, 107 S.Ct. 1053, 1066, 94 L.Ed.2d 203 (1987) (plurality opinion); see also id. at 187, 107 S.Ct. at 1074 (Powell, J., concurring). In light of these factors, two aspects of the race-based promotional remedies at issue here are problematic. First, the City has made no effort to limit the duration of these remedies. The 1979 and 1981 decrees provide that the use of validated non-discriminatory promotional procedures may be an acceptable alternative to race-based relief. Indeed, over 15 years ago the City stipulated that it “is currently in the process of developing” such procedures, and that “development of fully validated processes is two to three years from accomplishment.” (Aiken Plaintiffs’ Brief Addendum at 26.) Yet, incredibly, the City continues to make police and fire department promotions according to procedures that have not been validated as racially neutral. This dereliction cuts against a finding that the race-based remedies at issue here are narrowly tailored, for, as Judge Posner' has explained: It should be unnecessary to add that a public employer cannot be allowed to justify reverse discrimination by the bootstrap method of an alternating sequence of racial promotions (or hires). • That is, the city cannot get points for first using a presumptively biased eligibility list to make a string of white promotions and then turning around and trying to do some' rough racial justice by promoting two blacks from the bottom of the list. Billish v. City of Chicago, 989 F.2d 890, 894 (7th Cir.) (en banc), cert. denied, — U.S. -, 114 S.Ct. 290, 126 L.Ed.2d 240 (1993). We note that the City’s failure even to develop validated promotional procedures suggests political pressures may have prevented it from utilizing racially neutral remedies as an alternative to the promotion goals set forth in the decrees. When such pressures are present, racially neutral remedies often will remain .untried, absent legal action by those persons adversely affected by the race-based relief. Under such circumstances, the courts must take special care as they engage in their “most searching examination” of whether racial preferences have been shown to be necessary, Wygant, 476 U.S. at 273, 106 S.Ct. at 1846, since that examination will not be undertaken by any other body. Otherwise, promotion and hiring goals may come to resemble not remedies but entitlements. That development surely “would not bespeak the kind of sensitivity to the importance of avoiding racial criteria in making employment decisions, whenever it is possible to do so, that Croson requires.” Billish, 989 F.2d at 894. Second, the promotion goals set forth in the 1979 and 1980 decrees may not bear a sufficiently precise relationship to the “relevant labor market” to be “narrowly tailored.” At the outset, however, we note our disagreement with the Eason plaintiffs’ argument that the 20% promotion “floor” in the 1980 consent decree is overbroad because it bears no necessary relationship “to any injury suffered by anyone.” (Eason En Banc Brief at 36.) If the 20% floor itself somehow were a long-term goal, plaintiffs might have a point. This floor, however, is merely a means of speedily realizing the long-term goals of the decrees. And the result reached in Paradise makes clear that it is a permissible means of realizing those goals. See 480 U.S. at 179-80, 107 S.Ct. at 1070-71 (50% hiring floor was permissible means of reaching long-term goal of 25% black representation in police force) (plurality opinion); id. at 188, 107 S.Ct. at 1075 (Powell, J., concurring); but see In Re Birmingham Reverse Discrimination Employment Litig., 20 F.3d 1525, 1543 (11th Cir.1994) (50% “quota” was impermissible means of reaching long-term goal of 28% black representation). But, as noted earlier, the 1979 and 1980 decrees provide that, to the extent qualified applicants are available, the percentage of blacks promoted to each rank shall be at least the percentage of blacks in the next rank below. As a result of this “ripple effect,” the promotion goals are tied to the hiring goals contained in the 1974 and 1981 decrees. Those hiring goals are determined by reference to the undifferentiated “Shelby County civilian labor force.” (Aiken App. at 142). Thus, the promotion goals ultimately are tied to undifferentiated Shelby County labor force statistics. If the percentage of blacks in the Shelby County labor force is greater than the percentage of blacks in the qualified labor pool for the positions of patrol officer and fire private, this reliance upon undifferentiated Shelby County labor force statistics eventually might cause more blacks to be promoted than would have been promoted in a system that never had been influenced by discrimination against blacks. In that event, the promotion goals would move beyond the elimination of the “vestiges of past discrimination,” Board of Education of Oklahoma City Public Schools v. Dowell, 498 U.S. 237, 245, 111 S.Ct. 630, 635, 112 L.Ed.2d 715 (1991), to engage in unwarranted racial classifications. Cf. Wygant, 476 U.S. at 294, 106 S.Ct. at 1857 (“Because the layoff provision here acts to maintain levels of minority hiring that have no relation to remedying employment discrimination, it cannot be adjudged ‘narrowly tailored’ to effectuate its asserted remedial purpose.”) (O’Connor, J., concurring in the judgment). We therefore must determine if a genuine issue exists as to whether the racial composition of the Shelby County labor force differs materially from that of the qualified labor pool for the positions of patrol officer and fire private. In Croson, the Supreme Court “recognized that for certain entry level positions or positions requiring minimal training, statistical comparisons of the racial composition of an employer’s work force to the racial composition of the relevant population may be probative of a pattern of discrimination.” 488 U.S. at 501, 109 S.Ct. at 726. The Court reiterated, however, that “ ‘[w]hen special qualifications are required to fill particular jobs, comparisons to the general population (rather than to the smaller group of individuals who possess the necessary qualifications) may have little probative value.’ ” Id. (quoting Hazelwood, 433 U.S. at 308 n. 13, 97 S.Ct. at 2742 n. 13). “Special qualifications,” then, winnow out a large enough portion of the general workforce to create a real possibility that the qualified labor pool for the position will have a materially different racial composition than that of the general workforce. Here, the qualifications for the positions of patrol officer and fire private have this winnowing effect. The qualifications for police officers in Tennessee are set forth in Tenn. Code Ann. § 38-8-106. The qualifications for firefighters in Tennessee are very similar and are set forth in Tenn.Com.R. & Regs. tit. 4, ch. 0360-7-.01. Since the qualifications for these positions winnow out a significant portion of the general workforce, there indeed is a possibility that the racial composition of the qualified labor pools for these positions will materially differ from that of the general Shelby County labor force. Amicus curiae the United States argues, however, that the reasoning of Dothard v. Rawlinson, 433 U.S. 321, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977), compels us to reach a contrary conclusion. The plaintiff in Do-thard claimed that a height and weight requirement disproportionately excluded women from the position of prison guard in the Alabama prison system. The United States maintains that the qualifications for the Alabama prison guard position were, apart from the height and weight requirement, similar to those for the positions of police officer and firefighter in Tennessee. The Dothard Court relied on national height and weight statistics to conclude that the height and weight requirement disproportionately excluded women from the qualified labor pool for the prison guard position. In doing so, the' Court implicitly assumed that the height and weight composition of the otherwise-qualified labor pool did not differ from that of Americans generally. The United States suggests that the Court’s reliance on general population statistics indicates that the qualifications at issue in Dothard did not .winnow out a significant portion of the general population, because, if they did, the otherwise-qualified labor pool for the Alabama prison guard position presumably could have had a different height and weight composition than that of the general population. (7) Have passed a physical examination by a licensed physician; The United States’ argument is flawed in two respects. First, the qualifications for the Alabama prison guard position differed from those at issue here, in that, among other things, a felony conviction did not render one unqualified for the prison guard position. See id. at 327, 97 S.Ct. at 2725 (setting forth qualifications). Second, and more important, race is unlike height and weight for demographic purposes. While the racial compositions of different groups of men and women (such as northern Michigan farmers and Detroit public school teachers) can vary dramatically, there is no reason to believe that the height and weight composition of the national population was any different from that of the otherwise-qualified labor pool for the Alabama prison guard position. Since we must determine whether there is a possibility that the racial composition of two groups — the general Shelby County workforce and the qualified labor pool for the positions of police officer and firefighter — are materially different, the Dothard Court’s reliance on general population statistics does not indicate that reliance upon such statistics is proper here. The factual question raised there simply was different in kind from that raised here. We therefore must remand these eases to the district court so that it may reexamine its finding on the narrowly tailored issue. On remand, the court should consider the City’s failure to utilize or even develop validated procedures for promotions in the police and fire departments. Additionally, the court should ascertain, as best it can the racial makeup of the qualified labor pool for the positions at issue, so that it can determine whether the decrees’ hiring and promotion goals have caused black representation in the relevant higher ranks to be greater than that representation would have been if no discrimination had ever occurred. III. In addition to attacking the consent decrees on constitutional grounds, the Aiken and Eason plaintiffs each argued below that the decrees have not been applied as written. In support of this argument, plaintiffs maintained that the decrees do not require the City to engage in affirmative action, but only mandate the establishment of racially neutral-testing procedures. Plaintiffs now argue that the district court erred when it held that they each lacked standing to present this argument. In Vogel v. City of Cincinnati, 959 F.2d 594, 598 (6th Cir.1992), we held that third parties to a consent decree lack standing to enforce their understanding of its terms. In so holding, we relied on the following language in Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975): “[A] well-settled line of authority from this Court establishes that a consent decree is not enforceable directly or in-collateral proceedings by those who are not parties to it even though they were intended to be benefited by it.” Id. at 750, 95 S.Ct. at 1932 (emphasis added). Despite this language, plaintiffs argue that their cases are distinguishable from Vogel because, in plaintiffs’ view, they were intended third-party beneficiaries of the consent decrees. This view of the decrees is based on the decrees’ declared object of ensuring that “equal employment opportunities will be provided to all.” (Eason App. at 19) (emphasis added). We reject plaintiffs’ argument. The plain language of Blue Chip indicates that even intended third-party beneficiaries of a consent decree lack standing to enforce its terms. Although other circuits have held to the contrary, see Hook v. Arizona Dep’t of Corrections, 972 F.2d 1012, 1015 (9th Cir.1992) (concluding that the holding of Blue Chip “does not apply to intended third party beneficiaries”); Berger v. Heckler, 771 F.2d 1556, 1565 (2d Cir.1985) (“we think that [Blue Chip ] was not intended to preclude nonparties from intervening to enforce a consent decree where otherwise authorized by the federal rules of civil procedure”), we are unable to join them until the Supreme Court revisits the unequivocal language of Blue Chip. The district court’s grants of summary judgment are VACATED, and these cases are REMANDED for proceedings consistent with this opinion. . The Aiken litigation began as two separate lawsuits but was consolidated into one case on appeal. . The Eason litigation began as two separate lawsuits but was consolidated into one case on appeal. . We emphasize that our holding is limited to the issue of whether the promotions at issue here were supported by a compelling interest. We express no opinion as to whether race-based promotions made after the decrees' goals have been met likewise would be supported by a compelling interest. See generally Detroit Police Officers Ass’n v. Young, 989 F.2d 225, 228 (6th Cir.1993). . Unlike the 1974 decree, which is quoted in the text, the 1981 decree states that its hiring goals shall be determined by reference to the “relevant Shelby County civilian labor force.” (Eason App. at 79) (emphasis added). Nevertheless, the City has indicated that it continues to use undifferentiated Shelby County civilian labor force statistics to set its hiring goals. See Response of Eason Defendants to Petition for Rehearing En Banc at 4 ("Affirmative action was thus utilized pursuant to the consent decrees in the promotional processes challenged herein as the minority representation in each rank was still considerably below the 35.1% non-white level in the Shelby County civilian labor market."); Response of Aiken Defendants to Petition for Rehearing En Banc at 4 ("[M]inori1y representation in the sergeant rank increased to 22% in 1988 and to 25.6% in 1989. However, minority representation in the sergeant rank was still significantly below the 35.1% minority representation in the civilian labor market for Shelby County, Tennessee.”) (Citation omitted). . Section 38-8-106 provides: 38-8-106. Qualifications of police officers. — (a) After July 1, 1981, any person employed as a full-time police officer, and after January 1, 1989, any person employed/utilized as a part-time/temporary/reserve/auxiliary police officer or as a special deputy shall: (1) Be at least eighteen (18) years of age; (2) Be a citizen of the United States; (3) Be a high school graduate or possess equivalency; (4) Not have been convicted of or pleaded guilty to or entered a plea of nolo contendere to any felony charge or to any violation of any federal or state laws or city ordinances relating to force, violence, theft, dishonesty, gambling, liquor or controlled substances; (5) Not have been released or discharged under any other than honorable discharge from any of the armed forces of the United States; (6) Have such person's fingerprints on file with the Tennessee bureau of investigation; (8) Have a good moral character as determined by a thorough investigation conducted by the employing agency; and (9) Be free of all apparent mental disorders as described in the Diagnostic and Statistical Manual of Mental Disorders, Third Edition (DSM-III) of the American Psychiatric Association. Applicants must be certified as meeting these criteria by a qualified professional in the psychiatric or psychological fields. .This regulation provides that a firefighter shall: (a) be at least eighteen (18) years of age; and (b) be a citizen of the United States; and (c) be a high school graduate or possesses equivalency; and (d) have not been convicted of any felony charge, have not pleaded guilty to any felony charge, have not entered a plea of nolo contendere to any felony charge; and (e) have not have been released or discharged under any other than honorable discharge from any of the armed forces of the United States; and (f) have no history, within the past three (3) years, of habitual intoxication and/or personal misuse of any drugs, and/or the use of intoxicating liquors, narcotics, controlled substances and/or stimulants in such a manner as to adversely affect the person's ability to perform as a fire fighter [or] to cause discredit to the fire service; and (g) must [sic] meet all local requirements; and (h) have passed a physical examination by a licensed physician; and (i) have a good moral character^] (j) or have successfully appealed such cause of ineligibility to the appropriate local authority having jurisdiction. . This conclusion merely makes explicit what was implicit in our holding in Long v. City of Saginaw, 911 F.2d 1192 (6th Cir.1990), where we (teld that undifferentiated workforce statistics cannot be used to fashion a narrowly tailored affirmative action remedy for past discrimination •in police department hiring and promotions. Id. at 1200. See also Janowiak v. Corporate City of South Bend, 836 F.2d 1034, 1041-42 (7th Cir.1987) (reliance upon general workforce statistics was improper basis for fashioning a narrowly tailored remedy for past discrimination in police and fire departments), cert. denied 489 U.S. 1051, 109 S.Ct. 1310, 103 L.Ed.2d 579 (1989). But see Davis v. City and County of San Francisco, 890 F.2d 1438, 1447 (9th Cir.1989) (use of general workforce statistics permissible to show discrimination in fire department), cert. denied sub nom. San Francisco Fire Fighters Local 798 v. San Francisco, 498 U.S. 897, 111 S.Ct. 248, 112 L.Ed.2d 206 (1990). . The Dothard Court also noted, but did not rely on, the fact that women composed 36.89% of the Alabama labor force but held only 12.9% of Alabama's prison guard positions. 433 U.S. at 329, 97 S.Ct. at 2726. . It appears that the City has used the most current statistics available in setting its hiring goals. (See Aiken App. at 183-84.) Since there never has been any analysis of the racial makeup of the qualified labor pool, the possibility remains that the proportion of blacks in the qualified labor pool at the time of the promotions at issue here was greater than the proportion of blacks in the qualified labor pool during the period for which there is “strong evidence” of discrimination. Because the issue was neither raised nor briefed on appeal, however, we express no opinion at this time as to whether a hiring goal that mandates levels of black representation greater than the level of black representation in the qualified labor pool during the period in which discrimination occurred can be a narrowly tailored remedy for that discrimination. . Although the district court held that plaintiffs lacked standing to argue that the’decrees have not been applied as written, the court did not hold that plaintiffs lacked standing to argue that the decrees have been applied in a manner that violates their constitutional rights. . Since much of Judge Jones's dissent concerns issues such as the applicability of the Civil Rights Act of 1991 that were never raised nor argued, the majority opinion does not address these issues nor respond to Judge Jones’s contentions relative to these issues. One response to the dissent is appropriate, however. The observation that the majority has concluded that strict scrutiny is the appropriate analysis for the remedy provisions of the decrees is, of course, an accurate one. The explicit and implicit contention that the majority has made a finding that the remedy provisions are not narrowly tailored is incorrect. A finding on this issue first will have to be made in the district court upon remand.
MERRITT, Chief Judge, concurring. The plaintiffs, who complain of reverse discrimination by the City of Memphis, argue that the number of blacks in the lowest ranks of the police and fire departments has been artificially inflated. This is because the city administration interprets the consent decree as allowing the hiring of blacks based simply on their greater percentage in the general population of the county rather than on the lesser percentage of blacks in the labor pool who are qualified to be hired as officers. Thus the plaintiffs argue that a promotional ratio based on the percentages in the lowest ranks artificially inflates the number of black officers promoted. They argue that the consent decree is being unconstitutionally enforced and should be modified or terminated. For two reasons there appears to be substance to this argument, and I agree with the court that the case should be remanded to the district court for trial. First, entry level officers must have several special qualifications above the general labor force in Shelby County. For example, an officer must be a high school graduate in order to qualify, and the officer must not have a criminal record. We do not know at the present time how the criminal record statistics would affect the qualified labor pool. But the 1990 census shows that 85% of whites in Shelby County graduated from high school. Only 60% of blacks over 24 years of age are high school graduates and only 68% of blacks between 18 and 24 are high school graduates. Thus there is a substantial difference in the general labor pool and the qualified labor pool for fire and police officers. If the consent decree remains in effect, this difference must be either taken into account in hiring and promotion or a valid reason must be given for discarding it. Second, the general population and the voting population of the City of Memphis is now predominantly black and African-Americans hold the levers of governmental power. The Mayor, the police chief and the majority of high level administrative officials of the city are black. Accordingly, there is a substantially greater risk that the continued use of racial hiring goals which greatly exceed the qualified labor pool in question will discriminate against whites. That is what the plaintiffs claim. We may not assume in such a situation that the required employment ratio is benign. History and common sense tell us that it is possible for blacks to discriminate against whites as well as vice ver-sa. The court has an obligation to ensure that the decree is not being used to prefer the majority race in the city, whether black or white. Hence there must be a factual determination on this issue. Further there remains in this case a threshold question not addressed by the court below: whether neutral and objective employment standards should now be formulated to replace preferential hiring ratios based on color. Because the plaintiffs have proffered substantial evidence that the hiring and promotional percentages now used by city officials give blacks a much greater opportunity for employment, and hence promotion, than the percentage of blacks and whites in the qualified labor pool would justify, I agree with the court that the case should go to trial on the merits and not be disposed of summarily without a trial. Also it seems clear that careful and intensive scrutiny should be required in communities where it is claimed that the race which controls the governmental machinery is placing the minority race at a clear disadvantage in hiring and promotion. It may well be that a trial will show that racially based hiring under the consent decree should now be terminated. The Equal Protection Clause does not allow the majority race in a city to use its governmental power to prefer its race over the minority race except in the most unusual and compelling circumstances. To hold otherwise would be to reinstitute racial discrimination, the constitutional wrong that the parties and the court below were seeking to remedy when the decree was originally entered.
NATHANIEL R. JONES, Circuit Judge, dissenting, with whom KEITH, BOYCE F. MARTIN, Jr. and DAUGHTREY, Circuit Judges, join. We respectfully dissent because, contrary to the majority, we believe that the City of Memphis has narrowly tailored the challenged affirmative action plans to achieve a compelling state interest. Furthermore, we are convinced that the majority’s application of the strict scrutiny test to reverse the grant of summary judgment to Memphis is a most regrettable and critical error. Finally, we feel compelled to express our conviction that by failing to uphold consent decrees, such as those at issue here, the majority runs afoul of the Fourteenth Amendment and the clearly stated aspirations of the 1991 Civil Rights Act, Pub.L. No. 102-166, 105 Stat. 1071 (codified in scattered sections of 42 U.S.C.). I. Strict scrutiny is inappropriately applied to benign racial classifications intended to remedy our nation’s deplorable history of racial discrimination. The majority has erroneously read recent Supreme Court cases, which hold that strict scrutiny is appropriately applied in some contexts, as requiring strict scrutiny be applied to all racial classifications. Even after examining the Memphis plans under this most stringent standard of review, we find that the affirmative action plans at issue here satisfy strict scrutiny. Strict scrutiny requires that a state’s use of racial classifications must be narrowly tailored to support a compelling government interest. United Black Firefighters Ass’n v. City of Akron, 976 F.2d 999, 1009 (6th Cir.1992) (citing City of Richmond v. J.A Croson Co., 488 U.S. 469, 505-07, 109 S.Ct. 706, 727-29, 102 L.Ed.2d 854 (1989)). Applying this two-pronged analysis to the ease before us, we agree with the majority that “the race-based promotions in question were supported by a compelling interest.” Maj. Op. at 1163-64. We must part company with the majority, however, insofar as it concludes that the remedial actions taken by Memphis were not narrowly tailored. In determining whether a remedy is narrowly tailored, the Supreme Court has instructed courts to look at several important criteria, including: (1) the efficacy of alternative remedies; (2) the planned duration of the remedy; (3) the relationship between the percentage of minority workers to be employed and the percentage of minority group members in the relevant population or work force; (4) the availability of waiver provisions if the plan cannot be met; and (5) the effect of the remedy upon innocent third parties. United States v. Paradise, 480 U.S. 149, 187, 107 S.Ct. 1053, 1074, 94 L.Ed.2d 203 (1987) (Powell, J., concurring); Davis v. City & County of San Francisco, 890 F.2d 1438, 1447 (9th Cir.1989), cert. denied, 498 U.S. 897, 111 S.Ct. 248, 112 L.Ed.2d 206 (1990). Evaluating Memphis’ challenged plans in light of these considerations, we conclude that the City’s limited use of race-conscious relief was narrowly tailored for several reasons. As an initial matter, the challenged plans do not bar white employees from being promoted. See Paradise, 480 U.S. at 183, 107 S.Ct. at 1072 (quoting Wygant v. Jackson Bd. of Ed., 476 U.S. 267, 282-83, 106 S.Ct. 1842, 1851, 90 L.Ed.2d 260 (1986)) (finding that “like a hiring goal, [the promotion goal] ‘impose[s] a diffuse burden, ... foreclosing only one of several opportunities.’ ‘Denial of a future employment opportunity is not as intrusive as loss of an existing job,’ and plainly postponement imposes a lesser burden still.”) (citations omitted); Stuart v. Roache, 951 F.2d 446, 454 (1st Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1948, 118 L.Ed.2d 553 (1992); Higgins v. City of Vallejo, 823 F.2d 351, 360 (9th Cir.1987) (“Like hiring goals, promotion guidelines visit a minor burden on non-minority employees. But unlike hiring goals, promotion guidelines do not require that an individual bear the burden of past discrimination to the extent that he or she is denied a livelihood.”), cert. denied, 489 U.S. 1051, 109 S.Ct. 1310, 103 L.Ed.2d 579 (1989); accord Long v. City of Saginaw, 911 F.2d 1192, 1196-97 (6th Cir.1990) (“[Ajlthough initial employment opportunities coupled with hiring goals may burden some innocent individuals, they do not impose the same type of intrusive injuries that layoffs, which result in loss of job expectancy, security, and seniority, involve.”). Furthermore, the promotion of unqualified persons over qualified persons is neither required nor permitted by the plans adopted in Memphis. Thus, to the extent that any Blacks are given “special” treatment, it should be noted that only qualified Blacks are afforded this advantage. This, too, is a significant indication of narrow tailoring. See Mackin v. City of Boston, 969 F.2d 1273, 1278 (1st Cir.1992) (finding that important indicium of narrow tailoring was the plans allowance for special treatment of qualified minorities only), cert. denied, — U.S.-, 113 S.Ct. 1043, 122 L.Ed.2d 352 (1993). Memphis’ plans are also narrowly tailored because they are specifically designed to remedy the existing imbalance between the proportion of Black entry level personnel and Blacks in promotional ranks. Under, the consent decrees the percentage of Blacks promoted approximated the percentage of Blacks in the next rank below to the greatest extent possible using qualified candidates. For example, of the seventy-five promotions made in the police department during the 1988 promotional process, Black candidates were awarded twenty-six positions. This ratio approximated the percentage of Blacks in the next rank below. In 1989, of the ninety-four promotions granted, thirty-three were awarded to Blacks, again approximating their percentage in the relevant applicant pool. The Memphis Fire Department also made limited use of racial classifications to correct the effect of discrimination upon the promotion of minorities. In 1989, Blacks received nine of the forty-one promotions awarded. Though this promotional process applied the 1980 consent decree’s target goal of 20%, instead of applying the actual percentage of Blacks in the rank next below, this does not defeat the narrow tailoring of the remedy. See Paradise, 480 U.S. at 179-80, 107 S.Ct. at 1070-71 (approving temporary use of a 50% hiring goal to expedite achievement of long term goal of 25%). From 1989 to 1990, one of the two promotions made to the rank of fire investigator was a minority. Similarly, affirmative action facilitated the promotion of four Blacks to the rank of battalion chief, out of the thirteen total promotions to that position. Much like the promotions in the Police Department, each of the Fire Department’s rounds of promotions made limited use of race-conscious affirmative action to remedy only the existing racial imbalance between ranks. Had Memphis not employed affirmative action during these promotional processes, the percentage of Blacks promoted would have remained far below the percentage of Blacks in the next rank below. For example, in 1988, absent the use of race-conscious remedies, Blacks would have received only 9.3% of the promotions, despite the fact that they constituted 32.9% of the applicants, and comprised 32.4% of all patrol officers. Absent the use of affirmative action in the 1989-1990 promotions, neither of the promotions to fire investigator would have gone to minorities, even though 34.8% of the relevant applicant pool was Black. Similarly unacceptable results would have occurred in other areas of promotion absent the race-conscious relief currently under attack. Also of significance, and contrary to the majority’s assertion, is the fact that the challenged plans are of limited duration. Memphis can dissolve the decrees at any time, upon the achievement of the stated goals. Yet, the majority argues that the plans are not narrowly tailored because “the City has made no effort to limit the duration of these remedies.” Maj. Op. at 1164. Memphis’ failure to dispense with the use of affirmative action is hardly an indication of a lack of narrow tailoring. Rather, it demonstrates Memphis’ keen appreciation that the current vestiges of prior discrimination have yet to be satisfactorily remedied. As we noted in Jansen v. Cincinnati, 977 F.2d 238, 246 (6th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 2344, 124 L.Ed.2d 254 (1993), a city is not required to prematurely dismantle its use of affirmative action: While we recognize that a consent decree operating in perpetuity may not be the most effective way to eradicate the evils of discrimination in the municipal workplace, we must remain true to the wording and intent of such decrees, until their goals are met. Consequently, though Memphis had made significant progress toward its goals, it had not yet reached them by 1988 or 1989. The majority ignores binding precedent when it implies that the continued pursuit of the goals of the decree renders the plans unlawful on the grounds that they are not narrowly tailored. The majority also asserts that the plans are not narrowly tailored because “the 1979 and 1980 decrees may not bear a sufficiently precise relationship to the ‘relevant labor market.’ ” Maj. Op. at 1164r-65. The majority bases its conclusion on the questionable premise that qualifications for the position of “patrol officer” and “fire private” are in some manner special qualifications that “winnow out a significant portion of the general workforce.” Maj. Op. at 1166. The majority’s reasoning, however, is in conflict with Supreme Court precedent. In City of Richmond v. J.A. Croson Co., 488 U.S. 469, 501-02, 109 S.Ct. 706, 726, 102 L.Ed.2d 854 (1989), the Court found that “where special qualifications are necessary, the relevant statistical pool ... must be the number of minorities qualified to undertake the particular task.” The Court further commented, however, that “[i]n the employment context, we have recognized that for certain entry level positions or positions requiring minimal training, statistical comparisons of the racial composition of an employer’s work force to the racial composition of the relevant population may be probative of a pattern of discrimination.” Id. at 501, 109 S.Ct. at 726 (emphasis added). The qualifications required of Memphis’ entiy level police and fire personnel are of the sort described in Cro-son, which courts have found permit reference to general population statistics. See Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 616, 631-32, 107 S.Ct. 1442, 1452, 94 L.Ed.2d 615 (1987) (“[A] comparison of the percentage of minorities or women in the employer’s work force with the percentage in the area labor market or general population is appropriate in analyzing jobs that require no special expertise.”); Hazelwood Sch. Dist. v. United States, 433 U.S. 299, 308 n. 13, 97 S.Ct. 2736, 2742 n. 13, 53 L.Ed.2d 768 (1977) (“[Cjomparison between the percentage of Negroes on the employer’s work force and the percentage in the general areawide population [is] highly probative [when] the job skill there involved ... is one that many persons possess or can fairly readily acquire.”); Davis, 890 F.2d at 1447 (allowing statistical comparison with general population for entry level position of firefighter). For all the reasons stated, we find that the majority erred in concluding that Memphis’ challenged plans were not narrowly tailored to meet a compelling state interest. The decrees utilize a benign racial classification to eliminate the present effects of Memphis’ prior discrimination in a manner that is both carefully structured and narrowly drafted. We fail to discern any difference between these cases and that of Ohio Contractors Ass’n v. Keip, 713 F.2d 167 (6th Cir.1983) (Lively, J.), in which this court upheld a racially conscious remedy to past discrimination in the awarding of state construction contracts. We note also that Justice O’Conner cited Ohio Contractors Ass’n approvingly in Croson, even though it utilized an intermediate level of scrutiny in finding the Ohio plan to be narrowly tailored. Croson, 488 U.S. at 501, 109 S.Ct. at 725. Croson does not require that we find otherwise here. Accordingly, it was error not to uphold the plans as constitutionally valid. II. Having determined that the challenged plans satisfy both prongs of strict scrutiny, we would ordinarily conclude this analysis. However, we wish to address, briefly but with sincere conviction born of stark historical reality, the grave injustice that is perpetrated by the majority’s insistence on applying strict scrutiny to the use of remedial racial classifications unde