The opinion of the court was delivered by: SAROKIN
This matter presents to the court one of the most difficult and troubling issues facing the judiciary today. Either by court order or consent decree, minorities have been hired as police officers and firefighters in major cities throughout the country. The clear purpose of such orders was and is to affirmatively correct the imbalances which have resulted from a history of discriminatory practices in the hiring and promotion of minorities.
Many of these orders, including the one here at issue, do not provide for the specific procedures to be followed in the event of layoffs. If the dictates of seniority are to govern, then minorities, being the most recently hired, will be laid off and the goals of affirmative action undermined. If, on the other hand, an attempt is made to protect such minority hires, then persons with greater seniority will be compelled to forfeit positions guaranteed by contract and statute. It is the tension between these two alternatives which renders the resolution of this problem so difficult.
Affirmative action plans arose out of the recognition that this nation had oppressed its minority citizens, either purposefully or through the operation of more subtle social and economic forces. These plans seek more than to remove the nation's heel from the backs of minorities, but to reach down and to lift up those persons who have been deprived and discriminated against for centuries. The plans recognize the insufficiency of merely removing existing barriers. Affirmative action is necessary in order that historical imbalances and inequities not be prolonged well into the future.
Having recognized that obligation and acted upon it, are we to undo it in the face of economic reductions? Indeed, in hard economic times, it has always been the minorities who have suffered the most. It would be a dreadful step backwards to permit mass layoffs of minorities in light of the progress so recently achieved and so long in coming.
Changes in administration, changes in the composition of the Civil Rights Commission, indeed, changes in the government's position in this very litigation, should not alter the fundamental principles here involved. We cannot and should not retreat from our commitment to right the wrongs of the past. To permit layoffs based solely on seniority denies these principles and mocks the ideals of justice and equality which are the foundation of our Constitution and of the Civil Rights Acts.
By virtue of this determination, certain firefighters and police officers with greater seniority will be required to forfeit their positions. Were it not for the consent decree, these firefighters and police officers would be entitled to retain their positions under existing collective bargaining agreements and New Jersey civil service law. Though not themselves the perpetrators of the wrongs inflicted upon minorities over the years, these senior firefighters are being singled out to suffer the consequences. In effect, they are being required to hand over their jobs and paychecks to someone else. It is inconceivable that they can be asked to do this in the name of the public good, and yet not have the public assume the responsibility therefor. If we need to raze buildings to make way for a highway, to acquire land for a school or to obtain food to feed the poor, we do not simply take it from those who have it. What is involved in such cases is a taking of private property, and the Constitution requires that just compensation be paid.
Such a taking also occurs when the federal government, pursuant to civil rights legislation brings a lawsuit to enforce those laws and enters into a consent decree which adversely affects the contractual and statutory rights of private individuals. In such a situation, it is the federal government which must assume the resulting liability. It would be senseless to impose such liability upon the municipalities involved. Layoffs made in good faith, for economic reasons, may not be prohibited, for to do so would deny cities the right to reduce expenses. Moreover, if these municipalities could afford to pay just compensation, then they could afford to retain the workers. Requiring cities to pay persons whom they laid off because they could not afford to keep them would be ludicrous.
The court is therefore satisfied that the federal government must compensate senior firefighters laid off as a result of the application of the consent decree. The compensation to be paid is outlined below. However, the court recognizes that such compensation is small consolation to those who will nonetheless lose their jobs. Displaced senior firefighters and their families may well ask, "Why us?"
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 ...