wrought or why they should be singled out and forced to make an involuntary contribution to a cause not their own, no matter how worthy that cause may be.
If the analogy to taking for highway purposes is apt, then those whose homes are taken probably pose the same question. Compensation is not adequate reparation for the personal displacement and upset, and the need for a public corridor does not allay their personal loss. Affirmative action is also a highway of sorts. It provides an avenue of hope, a road to equality. However, to ignore the grief and anger of those who fall in its path is to be blind to a poignant reality of our times. One can only hope that those called upon to make the sacrifice will not permit it to escalate the very prejudice which it seeks to undo. They must recognize that affirmative action is likewise small compensation for those who are descendants of slavery and have continued to be the victims of insidious bondage for generations since its abolition.
The early procedural history of this matter is traced in detail in the court's opinion in Vulcan Pioneers, Inc. v. New Jersey Department of Civil Service, Civil Action No. 81-281, unpub. op. at 2-5 (D.N.J. October 1, 1982). The matter now before the court arises out of a suit filed by the United States on October 4, 1977. That suit charged that the New Jersey Department of Civil Service and twelve large cities in the state had discriminated against minorities in the hiring and promotion of firefighters. Originally consolidated with a class action brought on behalf of certain individuals who had applied for a position or a promotion in the Newark Fire Department, only the Justice Department action survived the court's February 23, 1979 decision dismissing certain individual plaintiffs who, the court held, had failed to timely file a complaint with the EEOC prior to suit and failed to allege intentional discrimination. See Hood v. New Jersey Department of Civil Service, 680 F.2d 955 (3d Cir. 1982) (affirming the decision of the district court). See also Bronze Shields, Inc. v. New Jersey Department of Civil Service, 667 F.2d 1074 (3d Cir. 1981) (hiring and promotion of police officers). On May 30, 1980, the parties to the remaining action entered into a Consent Decree which was approved by the court. The Decree notes that defendants denied the existence of the discrimination alleged but provides for an affirmative action plan "to increase substantially the proportion of black and Hispanic personnel on [defendant's] respective fire departments." para. 3. Interim hiring goals ranging from 33% minority, in Elizabeth, to 60% minority in Newark and East Orange, were established, para. 3(a)-(d), pending the results of a new validity study and, consequently, a new examination in compliance with the Uniform Guidelines of Employee Selection Procedures, 28 CFR § 50.14 paras. 4, 7(a). Recruitment and training programs were to be developed, para. 5(a), and various reporting and recordkeeping requirements were set forth, paras. 5(b), 6, 7(c), 9, 10, 11. Existing state laws respecting, for example, minimum qualifying standards, para. 4(a), veterans preference requirements, para. 4(b), residency preference requirements, para. 4(c) and probationary periods, para. 4(d), were to remain in effect. Provision was made for the involvement of the court in the event of a dispute, paras. 6, 8, 11, and the court retained jurisdiction of all the matters covered. para. 12. The Consent Decree did not, however, specifically discuss layoffs.
That omission became relevant when, in the midst of a fiscal crisis, the City of Newark proposed to lay off 76 firefighters, of whom 46, or 60%, were to be minorities. On December 30, 1983, Vulcan Pioneers, an organization of black and Hispanic firefighters employed by the Newark Fire Department and Frederick Shackleford, one such firefighter, obtained an order to show cause why such layoffs should not be restrained. On January 3 and 4, 1984, counsel for these minority firefighters appeared and argued for such restraints. Their application was opposed by counsel for the State, for the City of Newark and for the Newark Firemen's Benevolent Association (FMBA). By Bench Opinion dated January 4, 1984 and Order signed the following day, the court granted the application for a temporary restraining order. It also restrained any and all dismissals of nonminority, senior firefighters, and ordered the City of Newark, the State and the federal government to appear on January 16, 1984 and show cause "(1) why the City of Newark and/or State of New Jersey should not be ordered and directed to appropriate the necessary monies so as to retain the services of . . . minority firefighters; and (2) why the United States should not be required to compensate any senior firefighters who may be laid off in order to retain the employment of the minority firefighters pursuant to the Consent Decree. . . ."
The City, the State and the federal government, and the Newark FMBA filed briefs in opposition to the injunctive relief posed by the court. Additionally, the City and State moved to dissolve the temporary restraints then in effect, which the court did, in light of an emergency appropriation passed by the State Legislature providing the funds necessary for Newark to avoid the proposed layoffs. Finally, the City sought to avoid recurrence of this problem and therefore moved for an order "determining and establishing the procedure to be utilized in any future layoffs to comply with [the] consent decree." In light of this motion, on January 16, 1984, the court ordered the parties to this action to meet and attempt to modify, by agreement, the Consent Decree in order to resolve the issues raised by the layoff problem. After hearing argument, however, and in light of the position taken by the United States ruling out an agreement basing layoffs on any factors other than seniority, the court reconsidered this order and wrote, in a letter dated January 18, 1984:
. . . in the interests of a speedy resolution of this problem and of avoiding the need to move hastily should fiscal problems again arise, the parties are directed to file briefs on or before March 1, 1984, addressing the following issues:
1. Should minority persons be retained in the face of layoffs in preference to persons with seniority?