JUSTICE O'CONNOR, with whom THE CHIEF JUSTICE and JUSTICE SCALIA join, dissenting.
In Wygant v. Jackson Board of Education, 476 U. S. 267, 476 U. S. 273 (1986), we concluded that the level of Fourteenth Amendment
scrutiny does not change merely because the challenged classification operates against a group that historically has not been subject to governmental discrimination.
Thus, in evaluating the constitutionality of the District Court order in this case under the Fourteenth Amendment, we must undertake a two-part inquiry. First, we must decide whether the order is "supported by a compelling [governmental] purpose." Ibid. Second, we must scrutinize the order to ensure that "the means chosen to accomplish that purpose are narrowly tailored." Ibid.
One cannot read the record in this case without concluding that the Alabama Department of Public Safety had undertaken a course of action that amounted to "pervasive, systematic, and obstinate discriminatory conduct." Ante at 480 U. S. 167. Because the Federal Government has a compelling interest in remedying past and present discrimination by the Department, the District Court unquestionably had the authority to fashion a remedy designed to end the Department's egregious history of discrimination. In doing so, however, the District Court was obligated to fashion a remedy that was narrowly tailored to accomplish this purpose. The plurality today purports to apply strict scrutiny, and concludes that the order in this case was narrowly tailored for its remedial purpose. Because the Court adopts a standardless view of "narrowly tailored" far less stringent than that required by strict scrutiny, I dissent.
As JUSTICE POWELL notes, this case is similar to Sheet Metal Workers v. EEOC, 478 U. S. 421 (1986). In Sheet Metal Workers, I observed that
it is completely unrealistic to assume that individuals of each race will gravitate with mathematical exactitude to each employer or union absent unlawful discrimination.
Id. at 478 U. S. 494. Thus, a rigid quota is impermissible, because it adopts
an unjustified conclusion about the precise extent to which past discrimination has lingering effects, or… an unjustified prediction about what would happen in the future in the absence of continuing discrimination.
Id. at 478 U. S. 494 -495. Even more flexible "goals," however, also may trammel unnecessarily the rights of nonminorities. Racially preferential treatment of nonvictims, therefore, should only be ordered "where such remedies are truly necessary." Id. at 478 U. S. 496. Thus,
the creation of racial preferences by courts, even in the more limited form of goals, rather than quotas, must be done sparingly, and only where manifestly necessary.
Id. at 478 U. S. 496 -497.
In my view, whether characterized as a goal or a quota, the District Court's order was not "manifestly necessary" to achieve compliance with that court's previous orders. The order at issue in this case clearly had one purpose, and one purpose only -to compel the Department to develop a promotion procedure that would not have an adverse impact on blacks. Although the plurality and the courts below suggest that the order also had the purpose of "eradicat[ing] the ill effects of the Department's delay in producing" such a promotion procedure, ante at 480 U. S. 171, the District Court's subsequent implementation of the order makes clear that the order cannot be defended on the basis of such a purpose.
The order imposed the promotion quota only until the Department developed a promotion procedure that complied with the consent decrees. If the order were truly designed to eradicate the effects of the Department's delay, the District Court would certainly have continued the use of the one-for-one quota even after the Department had complied with the consent decrees. Consistent with the terms of the order, once the Department developed a promotion procedure that did not have an adverse impact on blacks, the District Court suspended application of the quota. Under the approved promotion procedure, 13 troopers were promoted to corporal, of whom 3 (23.1%) were black. App. 160. The result of this new procedure was the promotion of a lower percentage of blacks than the purported goal of 25% black representation in the upper ranks, and the promotion of fewer blacks than even the Department's promotion proposal rejected by the District Court. To say the least, it strains credibility to view the one-for-one promotion quota as designed to eradicate the past effects of the Department's delay when the quota was suspended once the Department developed a promotion procedure that promoted a lower percentage of blacks than the 25% black representation goal.
Moreover, even if the one-for-one quota had the purpose of eradicating the effects of the Department's delay, this purpose would not justify the quota imposed in this case.
[T]he relationship between the percentage of minority workers to be [promoted] and the percentage of minority group members in the relevant population or work force
is of vital importance in considering the validity of a racial goal. Sheet Metal Workers v. EEOC, supra, at 478 U. S. 486 (POWELL, J., concurring in part and concurring in judgment). The one-for-one promotion quota used in this case far exceeded the percentage of blacks in the trooper force, and there is no evidence in the record that such an extreme quota was necessary to eradicate the effects of the Department's delay. The plurality attempts to defend this one-for-one promotion quota as merely affecting the speed by which the Department attains the goal of 25% black representation in the upper ranks. Ante at 480 U. S. 179 -180. Such a justification, however, necessarily eviscerates any notion of "narrowly tailored," because it has no stopping point; even a 100% quota could be defended on the ground that it merely "determined how quickly the Department progressed toward" some ultimate goal. Ante at 480 U. S. 180. If strict scrutiny is to have any meaning, therefore, a promotion goal must have a closer relationship to the percentage of blacks eligible for promotions. This is not to say that the percentage of minority individuals benefited by a racial goal may never exceed the percentage of minority group members in the relevant workforce. But protection of the rights of nonminority workers demands that a racial goal not substantially exceed the percentage of minority group members in the relevant population or workforce, absent compelling justification. In this case, the District Court -and indeed this Court -provide no such compelling justification for the choice of a one-for-one promotion quota, rather than a lower quota. In my view, therefore, the order in this case must stand or fall on its stated purpose of coercing the Department to develop a promotion procedure without an adverse impact on black troopers.
Given the singular in terrorem purpose of the District Court order, it cannot survive strict scrutiny. There is simply no justification for the use of racial preferences if the purpose of the order could be achieved without their use, because
[r]acial classifications are simply too pernicious to permit any but the most exact connection between justification and classification.
Fullilove v. Klutznick, 448 U. S. 448, 448 U. S. 537 (1980) (STEVENS, J., dissenting). Thus, to survive strict scrutiny, the District Court order must fit with greater precision than any alternative remedy. See Ely, The Constitutionality of Reverse Racial Discrimination, 41 U.Chi.L.Rev. 723, 727, n. 26 (1974). The District Court had available several alternatives that would have achieved full compliance with the consent decrees without trammeling on the rights of nonminority troopers. The court, for example, could have appointed a trustee to develop a promotion procedure that would satisfy the terms of the consent decrees. By imposing the trustee's promotion procedure on the Department until the Department developed an alternative promotion procedure that complied with the consent decrees, the District Court could have enforced the decrees without the use of racial preferences. Alternatively, the District Court could have found the recalcitrant Department in contempt of court, and imposed stiff fines or other penalties for the contempt. Surely, some combination of penalties could have been designed that would have compelled compliance with the consent decrees.
The District Court, however, did not discuss these options or any other alternatives to the use of a racial quota. Not a single alternative method of achieving compliance with the consent decrees is even mentioned in the District Court's opinion -with the exception of an even more objectionable 100% racial quota. See Paradise v. Prescott, 585 F.Supp. 72, 75, n. 1 (MD Ala 1983). What is most disturbing about the District Court's order, therefore, is not merely that it implicitly or explicitly rejected two particular options, but that the District Court imposed the promotion quota without consideration of any of the available alternatives. Even in Sheet Metal Workers v. EEOC, 478 U. S. 421 (1986), the District Court had "considered the efficacy of alternative remedies" before imposing a racial quota. Id. at 478 U. S. 481 ; see also id. at 478 U. S. 486 -487 (POWELL, J., concurring in part and concurring in judgment). Thus, the Court was able to evaluate the claim that the racial quota was "necessary." Without any exploration of the available alternatives in the instant case, no such evaluation is possible. Remarkably, however, the plurality -purporting to apply "strict scrutiny" -concludes that the order in this case was narrowly tailored for a remedial purpose.
Although the plurality states that it is merely "respect[ing]" the "balancing process" of the District Court, ante at 480 U. S. 184, it wholly ignores the fact that no such "balancing process" took place in this case. For even if, as the plurality insists, the District Court
'was in the best position to judge whether an alternative remedy, such as a simple injunction, would have been effective in ending [the] discriminatory practices,'
ibid. (quoting Sheet Metal Workers, supra, at 478 U. S. 486 (POWELL, J., concurring in part and concurring in judgment)), the least that strict scrutiny requires is that the District Court expressly evaluate the available alternative remedies. If a District Court order that is imposed after no evident consideration of the available alternatives can survive strict scrutiny as narrowly tailored, the requirement that a racial classification be "narrowly tailored" for a compelling governmental purpose has lost most of its meaning.
I have no quarrel with the plurality's conclusion that the recalcitrance of the Department of Public Safety in complying with the consent decrees was reprehensible. In its understandable frustration over the Department's conduct, however, the District Court imposed a racial quota without first considering the effectiveness of alternatives that would have a lesser effect on the rights of nonminority troopers. Because the District Court did not even consider the available alternatives to a one-for-one promotion quota, and because these alternatives would have successfully compelled the Department to comply with the consent decrees, I must respectfully dissent.