Could a Maryland court legally alternate hiring between Black and white applicants to make up for past discrimination in its workforce?

Plain-English summary

A judge of the Circuit Court for Baltimore City asked the Attorney General, in late 1989, whether the court's affirmative action hiring policy remained lawful. Adopted in 1976 by the court's predecessor, the Supreme Bench, the policy filled most courthouse vacancies alternately between qualified Black and qualified white applicants, a "one-black-for-one-white" hiring rule meant to increase minority representation among courthouse staff. After tracing a decade of Supreme Court affirmative action decisions culminating in the Court's 1989 Croson ruling, the Attorney General concluded that continuing the policy would violate the Equal Protection Clause. The 1976 record relied on general population and workforce statistics rather than evidence of identified discrimination against qualified applicants, and the alternating-hire rule was a rigid quota rather than a flexible, narrowly tailored remedy, one that had already run for more than a dozen years without a fixed endpoint.

Currency note

This opinion was issued in October 1989, applying the Equal Protection framework the Supreme Court had settled that January in City of Richmond v. J. A. Croson Co. to a hiring policy the Circuit Court for Baltimore City had followed since 1976. Affirmative action and equal protection doctrine governing public employment have continued to develop in the decades since 1989, and the opinion does not address whatever hiring practices the Circuit Court for Baltimore City or its Security Division may follow today. This page is a historical record of how the Attorney General analyzed one court's hiring policy against the case law available in 1989. It describes what the opinion concluded then and is not a statement of current Maryland court personnel practices or current equal protection doctrine. Verify current law directly before relying on anything here.

Common questions

Did Maryland's Attorney General say the Baltimore City circuit court's affirmative action hiring policy was unconstitutional? Yes. The opinion concluded that continuing the court's one-black-for-one-white hiring policy would violate the Equal Protection Clause of the Fourteenth Amendment.

Why did the opinion think a policy meant to fix past discrimination was itself unconstitutional? The opinion explained that the 1976 record supporting the policy relied on general population and workforce statistics, evidence of "societal discrimination," rather than evidence of identified discrimination against qualified minority applicants for courthouse jobs, and under the Supreme Court's Croson decision, societal discrimination alone cannot justify a race-conscious remedy.

Was the alternating one-black-one-white hiring rule treated as a flexible goal or a rigid quota? The opinion treated it as a rigid quota. It found the policy left no discretion: a qualified Black applicant had to be hired on the "Black" turn regardless of a white applicant's qualifications, and vice versa, which the opinion said failed the narrow-tailoring requirement of the Croson-Wygant test.

Did the length of time the policy had been in place matter to the outcome? Yes, it was one factor. The opinion noted the policy had already continued for more than a dozen years without a fixed end date tied to anything but broad population statistics, which weighed against treating it as the kind of temporary, flexible remedy the Supreme Court had approved in other cases.

Background and statutory framework

The one-black-for-one-white hiring policy traced back to a February 1976 report by the Supreme Bench of Baltimore City's Committee on Equal Employment Opportunity, which found that an earlier affirmative action plan had not increased Black employment enough relative to the city's population and recommended alternating hires by race until the courthouse workforce became more representative. The full bench adopted the policy in March 1976, covering most courthouse divisions but not judges' secretaries and law clerks. The General Assembly later transferred the Court House Security Division to the Sheriff's Office in 1976, Chapter 864, Laws of Maryland 1976, carrying forward a similar racial-alternation directive for that unit's hires. A 1980 law, Chapter 526, Laws of Maryland 1980, folded several courthouse units into a personnel merit system and provided that the Supreme Bench's affirmative action policy, as it existed and as later amended, would apply to that system, CJ §2-5A-07(a). In 1985, the Pre-Trial Release Services Division was transferred out of the court system, taking its employees out from under the 1976 policy, Chapter 725, Laws of Maryland 1985.

The opinion applied the two-part strict scrutiny test the Supreme Court had settled in City of Richmond v. J. A. Croson Co. earlier that year, building on Wygant v. Jackson Board of Education: whether the policy was justified by a compelling interest in remedying identified discrimination, and whether it was narrowly tailored to that end. On the first prong, the opinion found the 1976 committee had relied only on citywide population and workforce statistics, not evidence tied to the qualified applicant pool for specific courthouse jobs, which under Croson could not support a finding of identified discrimination; the opinion also noted that later, non-city workforce statistics would undercut the disparity even further. On the second prong, the opinion found the policy was a rigid quota rather than a flexible goal, since it mandated hiring by turn regardless of comparative qualifications and had already lasted more than a decade with no fixed end date apart from broad demographic benchmarks. The opinion also flagged, although not squarely asked, that the racial-alternation quota for the Security Division's own hires under Chapter 864 of the Laws of Maryland 1976 was likewise unconstitutional for the same reasons.

Citations and references

Statutes:

• Chapter 864, Laws of Maryland 1976, and Public Local Laws of Baltimore City §§22-6 through 22-11, transferring the Court House Security Division to the Sheriff's Office with its own racial-alternation hiring directive
• Chapter 526, Laws of Maryland 1980, consolidating courthouse clerical units into a personnel merit system
• CJ §2-5A-07(a), applying the Supreme Bench's affirmative action policy to that merit system
• Chapter 725, Laws of Maryland 1985, transferring the Pre-Trial Release Services Division out of the court system
• 42 U.S.C. §2000e et seq., Title VII of the Civil Rights Act of 1964

Cases:

• University of California Regents v. Bakke, 438 U.S. 265 (1978), the Supreme Court's first affirmative action decision, invalidating a rigid racial quota in medical school admissions
• United Steelworkers of America v. Weber, 443 U.S. 193 (1979), upholding a private employer's voluntary affirmative action plan under Title VII
• Fullilove v. Klutznick, 448 U.S. 448 (1980), upholding a federal minority business set-aside as a temporary, flexible remedy
• Firefighters Local Union 1784 v. Stotts, 467 U.S. 561 (1984), disapproving modification of a consent decree that would have laid off white firefighters
• Local 28 of Sheet Metal Workers v. EEOC, 478 U.S. 421 (1986), and Local Number 93 v. City of Cleveland, 478 U.S. 501 (1986), upholding race-conscious remedies for proven Title VII violations
• Wygant v. Jackson Board of Education, 476 U.S. 267 (1986), striking down a school board's race-conscious layoff protection for lacking a sufficient evidentiary basis
• J. A. Croson Co. v. City of Richmond, 478 U.S. 1016 (1986), and Janowiak v. Corporate City of South Bend, 481 U.S. 1001 (1987), cases remanded for reconsideration in light of Wygant
• Watson v. Fort Worth Bank and Trust, 487 U.S. 911, 977 (1988), cited for the proposition that preferential treatment and quotas by public employers can violate the Constitution
• Johnson v. Transportation Agency, Santa Clara County, Calif., 480 U.S. 616 (1987), upholding a gender-conscious promotion plan under Title VII without deciding its fate under the Equal Protection Clause
• United States v. Paradise, 480 U.S. 149 (1987), upholding a court-ordered one-black-for-one-white promotion requirement for Alabama state troopers as a temporary, flexible remedy for adjudicated discrimination
• City of Richmond v. J. A. Croson Co., 109 S.Ct. at 723-28 (1989), the decision finally settling the two-prong strict scrutiny test applied throughout this opinion
• Higgins v. City of Vallejo, 823 F.2d 351 (9th Cir. 1987), and Janowiak v. Corporate City of South Bend, 836 F.2d 1034 (7th Cir. 1987), lower court decisions reaching different results on race-conscious hiring and promotion plans
• City of South Bend v. Janowiak, 109 S.Ct. 1310 (1989), and Higgins v. City of Vallejo, 109 S.Ct. 1310 (1989), Supreme Court orders declining review of those lower court decisions
• Wards Cove Packing Co. v. Atonio, [109 S. Ct. 2115] (1989), a 1989 decision making it harder for some plaintiffs to prove a Title VII case with statistics alone

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1989/Volume74_1989.pdf (this opinion appears at printed pages 112-127 of the bound annual volume; Maryland's site does not publish a standalone PDF of this opinion)

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

Constitutional Law - Equal Protection - Affirmative Action - One- Black-For-One-White Hiring Policy Of Circuit Court For Baltimore City Is Unconstitutional

October 10, 1989

The Honorable Hilary D. Caplan
Circuit Court for Baltimore City

You have requested our opinion on the constitutionality of the affirmative action hiring policy for certain employees of the Circuit Court for Baltimore City. Under this policy, which was adopted in March 1976, vacancies are filled alternately by qualified minority applicants and qualified white applicants.

On the basis of caselaw developed since the voluntary adoption of the 1976 plan, it is our opinion that continuation of this hiring policy would violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

I

Background

A. Origin of the Policy

On February 25, 1976, the Supreme Bench of Baltimore City's Committee on Equal Employment Opportunity ("CEEO"), composed of five judges of that court, issued its report on affirmative action. The report noted that, despite the adoption of an affirmative action plan for court employees four years before, the number of blacks employed was insufficient:

[I]n the year 1973, for example, only 63 out of a possible 279 positions which are under the direct jurisdiction of the Supreme Bench were held by blacks; in the year 1974, only 60 out of 278 such positions were held by blacks ... [and] out of a possible 282 positions under the direct jurisdiction of the Supreme Bench of Baltimore City in the year 1975, only 65 of such positions were held by blacks.

CEEO Report at 2-3. The Committee compared these figures with the following statistics:

The percentage of blacks making up the working age population of Baltimore City in the year 1975, however, was 43.1%. The prospects for the future indicate that that percentage will increase even more.
Such a projection is based on the facts that 70% of the student population of Baltimore City Schools is black and that the current census figures indicate that the percentage of blacks making up the total population of Baltimore City is 53%.

CEEO Report at 3. Thus, the committee concluded that the existing affirmative action plan "has not been seen to ameliorate effectively prior discriminatory practices." Report at 6.

The committee posited as the goals of a new affirmative action effort "to provide employment opportunities to persons who have in the past been subjected, both overtly and covertly, to discrimination" and "to achieve a work force which, at all levels, will be truly representative of the work force of the community which it serves." Report at 5. The committee stated that:

The present situation mandates the immediate adoption of preferential hiring practices as specific temporary affirmative relief, the duration of which should be determined by the results of an annual review of the Court Administrator and a committee of judges regarding the degree to which such measures undertaken effectively offset the effects of past discrimination. When that has been determined to be the result, the preferential hiring relief can be terminated.

In this regard, the Committee recommends that specific one-to-one preferential hiring relief be implemented temporarily until the makeup of Supreme Bench personnel is more representative, in terms of minorities, of the area which it serves.

Report at 6 (emphasis in original). The committee added that:

This temporary policy of preferential hiring within the Supreme Bench on a one-to-one basis should continue until the vestiges of past discrimination against minorities has been eradicated.

Beginning as soon as is practicable, new vacancies on the Supreme Bench should be filled on a one-to- one basis, i.e., alternately, positions should be filled by a qualified racial minority applicant and next by a qualified white applicant, due regard being given in either instance for the employment of female applicants.

Id. at 7-12 (emphasis in original). The new hiring policy was approved by the entire bench on March 4, 1976, to become effective March 15, 1976. It applied to the Administrative Office, the Civil Assignment Office, the Criminal Assignment Office, the Court Reporters, the Pretrial Release Division, the Masters and staff and the Security Division, but not to the judges' secretaries and law clerks.

B. Statutory Changes

Although originally subject to the Supreme Bench Affirmative Action Plan, the Court House Security Division was transferred by statute to the Sheriffs Office in July 1976. Chapter 864, Laws of Maryland 1976. See also Public Local Laws of Baltimore City §§22-6 through 22-11. That law expressly provided, however, that:

[I]n making new appointments to the staff of the Division of Court House Security the Sheriff shall be guided by the general concept that the black and white races should be represented on the staff of the Division in approximately the same proportion as they exist in the general adult population of the City; until these proportions are attained the Sheriff shall be guided by the general policy that new appointments be alternated between black and white employees.

Chapter 864, at Section 3.

In 1980, a more far-reaching change was initiated. Contingent upon voter approval in 1982 of a constitutional amendment transforming the Supreme Bench into the Circuit Court for Baltimore City, legislation consolidated the clerk's offices, and established a personnel merit system for various units of the old Supreme Bench, including the civil assignment commissioner's office, the jury commissioner's office, the criminal assignment commissioner's office, the domestic relations division, the juvenile court clerk's office and the pre-trial release services division. See Chapter 526, Laws of Maryland 1980, codified as Subtitle 5A of Title 2 of the Courts Article ("CJ" Article). This legislation also provided that:

The Supreme Bench affirmative action policy that is in effect on January 1, 1983, and as amended from time to time by the judges of the Circuit Court for Baltimore City, shall apply to the personnel system.

CJ §2-5A-07(a).

In 1985, the General Assembly transferred the Pre-Trial Release Services Division to the Department of Public Safety and Correctional Services. Chapter 725, Laws of Maryland 1985. Thus, persons hired into this unit were no longer subject to the 1976 hiring policy.

C. Program Review and Progress

The CEEO Report called for the annual review of the one-black- for-one-white hiring policy by a committee of judges and the Court Administrator. As a result, the Equal Employment Committee was established. It is our understanding that this committee, which was merged into the Budget and Personnel Committee in 1988, has met annually and has voted to continue the hiring policy.

The last comprehensive study of the impact of the hiring plan occurred in April 1979. In a written report entitled "Affirmative Action Under the Supreme Bench of Baltimore City 1975-1978", Associate Judge Joseph C. Howard, Sr., observed that the hiring policy had not achieved a reasonable increase in minority employment representation, primarily because there were "an almost equal number of minority employees terminated as were hired." 1979 Report at 21. However, the report also noted a net gain of five black employees:

[D]uring the last nine months of 1976, in which the Affirmative Action Plan was in operation, minorities received 15 of the 34 job opportunities or 44%. Again in 1977 six of the 13 available jobs (45%) were awarded nonwhites. Finally, in the most recent year studied, a majority of the new positions (8 out of 14 or 57%) went to nonwhites.

Viewing these data from another perspective, in 1975 minorities comprised 26% of the entire employment population but received an average of almost 50% of the job opportunities over the three succeeding years.1

Report at 9. The Report concluded that the affirmative action plan "was definitely needed; has shown increasing results as it was given time to succeed; but must be continued over time before its ultimate goals will be reached." 1979 Report at 22.2

Recent statistics on the racial composition of the courthouse workforce show a definite increase over these earlier figures. Of the 293 employees in the Clerk's Office, 161 or 55 percent are minority and 132 or 45 percent are non-minority. Of the 109 employees in the

1
The 1979 Report stated that of the 223 court employees in 1975, 58 or 26% were black; and of the 211 employees in 1978, 63 or 30% were black. Id. at 6.
2
The report noted that the plan would not be successful "until the overall representation reaches its goal of reflecting the community which we serve." 1979 Report at 19.

Administrative Office, 57 or 52.3 percent are black and 52 or 47.7 percent are white.3

II

Relevant Caselaw

The United States Supreme Court did not decide its first reverse discrimination/affirmative action case until 1978 - some two years after adoption of the Supreme Bench hiring policy. In University of California Regents v. Bakke, 438 U.S. 265 (1978), the Court invalidated a 16 percent racial quota, which reserved seats at a state medical school for certain minority groups. Bakke contained a number of elements that were to become hallmarks of affirmative action decisions for the next decade: (1) a conclusion that some form of affirmative action by a government entity was constitutionally permissible; (2) a dichotomy between rigid racial "quotas," which were generally proscribed, and flexible "goals," which were not; (3) a concern for whether the same standard governed affirmative action under the 1964 Federal Civil Rights Act and under the Equal Protection Clause; (4) sharp divisions among the justices that prevented any opinion from being the "opinion of the Court"; and (5) little predictability about what the Court would uphold.4

In United Steelworkers of America v. Weber, 443 U.S. 193 (1979), the Court upheld the validity under Title VII of the 1964 Civil Rights Act, 42 U.S.C. §2000e et seq., of a voluntary affirmative action plan

3
According to 1980 Census figures, 55.4 percent of the population of Baltimore City is black, while 44.6 percent is white. For the Baltimore Standard Metropolitan Statistical Area ("SMSA"), the population was 25.9 percent black and 74.1 percent white. The employee work force (age 16 or older) in the City was 50.7 percent black and 49.2 percent white (25.1 percent-74.9 percent in the Baltimore SMSA). With respect to the potential work force (age 16 or older) in the City, 51.75 percent is black and 48.25 percent is white (27.7 percent and 72.3 percent in the Baltimore SMSA). See generally 1980 Census of Population: General Social and Economic Characteristics - MD (1983). A recent Census Bureau study of 1985 population statistics shows that Baltimore City is 57.4 percent black and the Baltimore SMSA 26 percent. Baltimore Sun, June 21, 1989, at Al. The relevance of these statistics will be discussed below.
4
Other important features of the Court's affirmative action decisions over the last decade were the differing treatment of voluntary and court-ordered affirmative action and of public and private entities.

adopted by a private employer. Under the plan, 50 percent of new trainees were to be black until the percentage of black skilled craftworkers at the workplace approximated the percentage of blacks in the local labor force. In Weber, the majority of the Supreme Court said that the affirmative action plan was permissible under Title VII because it was designed "to eliminate manifest racial imbalance in traditionally segregated job categories," 443 U.S. at 197, and was a temporary measure "not intended to maintain racial balance." 443 U.S. at 208.5

The next year, in Fullilove v. Klutznick, 448 U.S. 448 (1980) the Supreme Court upheld against a facial constitutional challenge a federal minority business enterprise ("MBE") law that required local governments receiving funds under a federal public works program to use 10 percent of the funds for procurements from minorities. The plan at issue in Fullilove was characterized as a temporary "pilot program," 448 U.S. at 481-82, within a "flexible" administrative scheme, 448 U.S. at 487-89, justified by the evidence before Congress of private discrimination. Thus, it was permissible as "a limited and properly tailored remedy to cure the effects of prior discrimination." 448 U.S. at 484.6

In 1984, the Court disapproved modification of a consent decree entered in a Title VII case against the Memphis Fire Department that would have resulted in the layoff of white firefighters. See Firefighters Local Union 1784 v. Stotts, 467 U.S. 561 (1984). Initially, some viewed this decision as presaging the end of affirmative action. See Schwartz, The 1986 and 1987 Affirmative Action Cases: It's All Over but the Shouting, 86 Mich. L. Rev. 524, 525 (1987). Subsequent cases, however, appeared to confine Stotts to its facts. See Tribe, American Constitutional Law 1534-35 n. 61 (1988).

5
The employer's adoption of the plan at issue in Weber had been prompted by the fact that only five of 273, or 1.83 percent of skilled craftworkers at the place were black, even though the workforce in the area was approximately 39 percent black. 443 U.S. at 198-99.
6
As in Bakke, no single rationale commanded a majority.

In 1986, the Court rendered two major affirmative action decisions.7 Local 28 of Sheet Metal Workers v. EEOC, 478 U.S. 421 (1986), involved a union found to have violated Title VII by intentionally discriminating against blacks and ordered by a federal district court to comply with a 29 percent non-white membership goal. A divided Supreme Court, in a plurality decision, upheld this race- conscious remedy as a temporary, flexible goal designed to end "pervasive and egregious racial discrimination." 478 U.S. at 476. The Court noted, however, that such relief should not be routinely ordered. 478 U.S. at 479.8

In Wygant v. Jackson Board of Education, 476 U.S. 267 (1986), the Court wrestled with the constitutionality of a voluntary race- conscious affirmative action plan established by a governmental entity and struck down the plan. In Wygant, white employees of the Jackson County School Board challenged the constitutionality of a collective bargaining agreement extending preferential protection against layoffs to minority employees. Although the Court upheld their claim, once again five justices could not agree upon a rationale. Four justices (Powell, Burger, Rehnquist and O'Connor) said that any racial distinction must be justified by a compelling governmental interest and that the measure chosen by the state to effectuate its purpose must be narrowly tailored to the achievement of that goal. 476 U.S. at 274. These justices went on to state that, before a governmental agency embarks on an affirmative action program, it must ensure that it has convincing evidence that remedial action is warranted and sufficient evidence to justify the conclusion that there has been prior

7
In a minor decision, Local Number 93 v. City of Cleveland, 478 U.S. 501 (1986), a majority of the Court, distinguishing Stotts as involving court modification of a decree, found that Title VII did not prevent the entry of a consent decree providing for certain forms of race-conscious relief. However, the Court declined to reach the issue of how such relief would fare under the Fourteenth Amendment. 478 U.S. at 517 n.8.
8
In Sheet Metal Workers, the justices said that:
[T]he [trial] court should exercise its discretion with an eye towards Congress' concern that race conscious affirmative measures not be invoked simply to create a racially balanced work force.... [A] court should consider whether affirmative action is necessary to remedy past discrimina- tion in a particular case before imposing such measures, and that the court should also take care to tailor its orders to fit the nature of the violation it seeks to correct.
478 U.S. at 475-76.

discrimination. 476 U.S. at 277. They said that the Jackson Board of Education had not made such a determination, noting that "[s]ocietal discrimination without more is too amorphous a basis for imposing a racially classified remedy." 476 U.S. at 276. Three of these justices (Powell, Burger, and Rehnquist) said that the layoff preference was not "narrowly tailored", because the actual burden shouldered by non- minorities laid off was "too intrusive." 476 U.S. at 283. In their view, "alternate remedies," such as hiring "goals," diffused to a greater extent among society "the burden to be borne by innocent individuals." 476 U.S. at 282. Justice O'Connor also specially concurred, concluding that the voluntary race-conscious remedy was not narrowly tailored because the layoff preference had no relationship to the availability of minorities in the relevant labor pool. 476 U.S. at 294.9

Thereafter, the Court remanded governmental affirmative action cases for reconsideration in light of Wygant. See, e.g., J. A. Croson Co. v. City of Richmond, 478 U.S. 1016 (1986) (minority set-asides in public contracts); Janowiak v. Corporate City of South Bend, 481 U.S. 1001 (1987) (public employer hiring preference). As late as 1988, the Court cited Wygant for the broad proposition that "[p]referential treatment and the use of quotas by public employers subject to Title VII can violate the Constitution," Watson v. Fort Worth Bank and Trust, 487 U.S. 911, 977 (1988). Nevertheless, it remained possible to incorrectly view the decision as merely a "layoff" case without lasting relevance to other areas of affirmative action - particularly in light of the Court's 1987 decisions.

In Johnson v. Transportation Agency, Santa Clara County, Calif, 480 U.S. 616 (1987), six justices - five joining in a single opinion - voted to reject a male employee's claim that by passing over him for

9
Justice O'Connor also noted that public employers were not without a reliable benchmark to determine prior discrimination justifying affirmative action:
[D]emonstrable evidence of a disparity between the percentage of qualified blacks on a school's teaching staff and the percentage of qualified minorities in the relevant labor pool sufficient to support a prima facie Title VII pattern or practice claim by minority teachers would lend a compelling basis for a competent authority such as the School Board to conclude that implementation of a voluntary affirmative action plan is appropriate to remedy apparent prior employment discrimination.
476 U.S. at 292.

promotion in favor of a female pursuant to an affirmative action plan, his public employer violated Title VII of the Civil Rights Act. Rejecting the concurring opinion of Justice O'Connor that Title VII and the Fourteenth Amendment should be read in tandem to require a statistical disparity sufficient to support a prima facie Title VII claim to justify the voluntary affirmative action plan, the majority felt that under Title VII all that was needed was a "manifest imbalance" that reflected underrepresentation of women in traditionally segregated job categories. 480 U.S. at 632.10 However, because the issue had not been raised, the Court expressly declined to decide how the plan at issue would have fared under the Equal Protection Clause. 480 U.S. at 620, n. 2.

In United States v. Paradise, 480 U.S. 149 (1987), five justices upheld the constitutionality of a court-ordered one-black-for-one-white promotion requirement as an interim measure for Alabama state trooper promotions. However, only three justices joined in Justice Brennan's opinion, which emphasized that the challenged requirement was "effective, temporary and flexible," 480 U.S. at 185 - "flexible" in that it could be "waived if no qualified black candidates [were] available." 480 U.S. at 177. In the plurality's view, it was a necessary remedy for court-adjudicated, longstanding discrimination. Also relevant to the outcome of the case was the fact that the term of the promotion "goal" was contingent upon the state's own conduct. That is, the requirement lasted only until the public employer came up with a promotion procedure that did not have a discriminatory impact on blacks.11

The Court's 1987 decisions led some commentators to conclude that the constitutional basis for farreaching race-conscious affirmative action was firmly established. See Schwartz, The 1986 and 1987 Affirmative Action Cases: It's All Over but the Shouting, 86 Mich. L. Rev. 524 (1987). However, in the case of voluntary affirmative action by governmental entities, this reliance was misplaced.

10
Justice O'Connor would have found a prima facie Title VII violation in the fact that none of the county's 238 skilled craft jobs was occupied by a woman, despite the fact that women constituted five percent of the local labor pool of skilled workers. 480 U.S. at 656.
11
In fact, the one-for-one requirement affected only eight black troopers and was quickly suspended by the court. 480 U.S. at 185-89 (concurring opinion of Justice Powell). Despite this fact and a significant record of 12 years of governmental discrimination, four justices dissented.

In January of 1989, in City of Richmond v. J. A. Croson Co., 109 S.Ct. (1989), a majority of justices struck down Richmond's 30 percent minority set-aside for city construction work, and finally agreed upon a standard to gauge the constitutionality of race-conscious affirmative action by state and local entities.12 Writing for the majority and relying upon Wygant, Justice O'Connor said that a race-conscious remedy disadvantaging whites had to serve a compelling state interest, such as remedying the present effects of "identified" discrimination, and the remedy had to be narrowly tailored to the achievement of that goal. 109 S.Ct. at 723-28.

In discussing the first prong of this test, Justice O'Connor noted that the evidence relied upon by the Richmond City Council to adopt the set-aside did not rise to the level of a prima facie violation of Title VII. 109 S.Ct. at 724. Specifically, she noted that evidence of societal discrimination was insufficient, as was statistical evidence of the low number of minorities receiving city contracts as compared to Richmond's 50 percent black population. Id.13

Turning to the second prong of the constitutional standard, Justice O'Connor found that the Richmond plan was not narrowly tailored. Calling the set-aside a "rigid, numerical quota" and an "absolute preference ... based solely on race," adopted without any consideration of race-neutral means to increase minority participation, she said "[w]e

12
By the time Croson was argued and decided, Justice Powell, a moderate on affirmative action, had been replaced by Justice Kennedy.
13
The Justice stated that:
In 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 workforce to the racial composition of the relevant population may be probative of a pattern of discrimination.... But where special qualifications are necessary, the relevant statistical pool for purposes of demonstrating discriminatory exclusion must be the number of minorities qualified to undertake the particular task.
109 S. Ct. at 725. Subsequent to the Croson decision, the Court made it more difficult for some plaintiffs to use statistics to make out a prima facie case of Title VII discrimination. In Wards Cove Packing Co. v. Atonio, U.S. [109 S. Ct. 2115] (1989), the Court said that a comparison between the high percentage of nonwhite workers in one employment category and a low percentage of such workers in another was insufficient to establish a prima facie case.

think it obvious that such a program is not narrowly tailored to remedy the effects of past discrimination." 109 S.Ct. at 728-29.14

In dissent, Justices Marshall, Brennan and Blackmun emphasized the breadth of the Court's ruling: "Today for the first time, a majority of this Court has adopted strict scrutiny as its standard of Equal Protection review of race-conscious remedial measures." 109 S.Ct. at

752. And just a month after Croson was decided, the Court declined
     to review two affirmative action/reverse discrimination cases that applied this rigorous test of constitutional analysis. See City of South Bend v. Janowiak, 109 S.Ct. 1310 (1989) (mem.) and Higgins v. City of Vallejo, 109 S.Ct. 1310 (1989) (mem.).15

     With these decisions in mind, we turn to a constitutional analysis
     of the circuit court's hiring policy.16

     14 For a more detailed analysis of Croson, see 74 Opinions of the Attorney
     General 76 (1989).
     15
     In Higgins, the Ninth Circuit rejected a constitutional attack by a top-ranked
     white candidate for promotion to firefighter-engineer who was rejected in favor of the third-ranked black, pursuant to an affirmative action plan. Under civil service rules, the city was free to choose among the top three candidates. Moreover, there was statistical and other evidence that the city had engaged in past discrimination. And the promotion plan was deemed narrowly tailored because it was just a "guideline" that treated race as a "plus" for an employee rather than a mandate. Higgins v. City of Vallejo, 823 F.2d 351 (9th Cir. 1987). In Janowiak, the Seventh Circuit struck down a race-conscious hiring plan that was premised solely upon a city finding that a disparity existed between the percentage of minorities in the city's population and the percentage of minorities in police and fire departments. Janowiak v. Corporate City of South Bend, 836 F.2d 1034 (7th Cir. 1987).
     16
     Arguably, it may be possible to avoid the constitutional issue here by declaring
     the policy's stated contingency successfully satisfied. That is, the court is now "more representative, in terms of minorities, of the area in which it serves" and that "the vestiges of past discrimination against minorities has been eradicated." However, such a determination is for the bench to make, not the Attorney General. In addition, given the emphasis of the CEEO Report (and update) on city population and workforce statistics, it is not clear that the present employee breakdown by race would equal or exceed census statistics, which by 1990 will likely show the City with a greater black population and more blacks in the workforce. See note 3 above. Finally, the General Assembly by statute has in essence endorsed the hiring policy. See CJ §2-5A-07(a). Hence, it would be difficult for the court to unilaterally end it, were it not for the constitutional compulsion to do so.

                                III
     
                             Analysis
     

     The one-black-for-one-white hiring policy for circuit court
     employees is a race-conscious remedy voluntarily adopted by a State employer. Thus, whether it is properly characterized as a "quota" or a "goal," its constitutionality must be gauged by the two-pronged test set forth in Croson and Wygant, rather than by the Title VII standards of Weber, Local 28 of Sheet Metal Workers and Johnson, or those governing court-fashioned remedies in cases of longstanding discrimination, such as in Paradise. Therefore, we must determine (1) whether the policy is justified as a remedy for identified discrimination or by another compelling reason, and (2) whether it is narrowly tailored to remedy the effects of past discrimination.

A. Past Discrimination

It would be naive to suggest that racial discrimination never existed in Baltimore City or that the courthouse was immune from the effects of that discrimination.17 Nevertheless, under Supreme Court decisions, "societal discrimination" will not justify race-conscious affirmative action.

The 1976 CEEO Report identified no specific acts of discrimination with respect to courthouse personnel or judicial or administrative findings of past discrimination. Instead, it relied upon statistics showing blacks holding some 23 percent of the jobs as opposed to comprising 53 percent of the City's general population and 43.1 percent of the City's working age population. Regardless of whether such statistics could demonstrate a "manifest imbalance" for Title VII purposes under Johnson v. Transportation Agency, they do not appear to constitute a prima facie violation of Title VII for Equal Protection purposes under City of Richmond v. J. A. Croson Co.

Even if these statistics continued to show a disparity down to the present day, they suffer from a number of inherent problems. First,

17 It was not until two decades ago that the Supreme Bench had its first black judge and court clerk.

courthouse positions are not homogeneous. Jobs covered by the hiring policy include masters (who must be lawyers), professionals, adminis- trators, clerical workers, and skilled craft workers. While some of these positions may require minimal training, thus permitting resort to general workforce statistics, others clearly require special qualifications. In the latter case, the relevant statistical pool must be the number of minorities qualified to hold the position in question. Croson, 109 S.Ct. at 725. Second, "potential work force" statistics include 16- and 17-year-olds, persons without high school diplomas, and others who might not meet basic qualifications for courthouse employment. Third, because there is no across-the-board residency requirement for courthouse employment, it is not clear whether the relevant workforce statistics should be derived from the City alone or from the entire Baltimore SMSA.18 If the latter figures are used, continuance of the one-black-for one-white hiring policy clearly would not be warranted on the basis of statistical disparities.19

In short, in light of current Supreme Court standards, neither the statistics assembled when the hiring policy was begun nor the present statistics would demonstrate a prima facie case of discrimination justifying a race-conscious remedy.20

18 The Baltimore City Charter, Article IV, §6A requires City residency of "board chairmen and all commission heads," and the City has a residence preference for its civil service employees. Nevertheless, State law does not mandate City residency for court employees.
19
See note 3 above.
20 Although remedying identified discrimination would have been a "compelling" rationale for the hiring policy, we do not believe that Supreme Court decisions would recognize as sufficiently compelling the goal of representing the area "served" by the court. Litigants from all over the State use courthouse services in Baltimore City, not just City residents in proportion to black-white population ratios.

B. Narrow Tailoring

The most serious constitutional defect of the hiring policy is its failure to meet the second prong of the Croson-Wygant test. It is not a narrowly tailored remedy. In fact, it is an inflexible hiring quota.21

When it is a qualified black's turn to be hired, the policy mandates the hiring of a qualified black applicant regardless of the perhaps superior qualifications of a particular white applicant; when it is a white's turn to be hired, the policy prevents a qualified black from applying for or filling the post. And, although the 1976 CEEO Report describes the hiring plan as a "temporary" remedy, it has already extended more than a dozen years, and its termination hinges on the achievement of percentages keyed to amorphous workforce/population statistics. In United States v. Paradise, a bare majority of the Supreme Court upheld a court-ordered one-black-for-one-white promotion "goal" described as "ephemeral." 480 U.S. at 178. We are convinced that the Court would not uphold the 12-year-old hiring quota at issue here.

21
In his concurring opinion in Sheet Metal Workers, Justice Powell described the distinction between "goals" and "quotas" articulated by the EEOC and the Departments of Justice and Labor:
In the view of these federal agencies, which are charged with responsibility for enforcing equal employment opportunity laws, a quota would impose a fixed number or percentage which must be attained, or which cannot be exceeded, and would do so regardless of the number of potential applicants who meet necessary qualifications.... By contrast, a goal is a numerical objective, fixed realistically in terms of the number of vacancies expected, and the number of qualified applicants available in the relevant job market.... An employer's failure to meet a goal despite good faith efforts "is not subject to sanction, because [the employer] is not expected to displace existing employees or to hire unneeded employees to meet [the] goal."
106 S.Ct. at 3060-61.

IV

Conclusion

For all of these reasons, it is our opinion that continuance of the one-black-for-one-white hiring policy of the Circuit Court for Baltimore City would violate the Equal Protection Clause of the Fourteenth Amendment.22

22
Although the issue is not specifically raised by your opinion request, we also believe the racial quota for courthouse Security Division employees mandated by Chapter 864 of the Laws of Maryland 1976 is likewise unconstitutional.

J. Joseph Curran, Jr.
Attorney General

Robert A. Zamoch
Assistant Attorney General

Jack Schwartz
Chief Counsel
Opinions and Advice