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July 26, 1985

STATE OF NEW JERSEY, et al., Defendants, and ROBERT M. SHERIDAN, et al., Intervenors

The opinion of the court was delivered by: SAROKIN

 The court is, once again, confronted with the claim of persons who have taken and passed a civil service examination for firefighter and now stand on the brink of appointment. The court reiterates its recognition of the frustration and the sense of unfairness experienced by persons who may be denied an opportunity because of the need to protect the rights of minorities.

 However, the need for affirmative action has not diminished, nor does this court perceive any change in the applicable law which would authorize it to retreat from the conditions of the consent decree entered in this matter and the principles which underly it.

 This court stated in an earlier opinion:

This case and others involving the same issues represent a turning point in our society. We cannot either through legislation or court edict, drive bias and prejudice from the hearts and minds of the people. We can, however, condemn such bias and prejudice and prohibit them from denying constitutional rights and equality to any of our citizens. Affirmative action plans, with all of their imperfections, deficiencies and weaknesses, are a symbol of this country's willingness to correct the inequities of the past and to express a commitment to their elimination in the future.

 Vulcan Pioneers, Inc. v. New Jersey Department of Civil Service, 588 F. Supp. 716, 727 (D.N.J. 1984). The foregoing continues to be the view of this court.

 In this particular case, those affected will be required to take the test again and, therefore, they will have the same opportunity to be appointed as they now have. Minorities, on the other hand, will now be afforded an equal opportunity denied to them in the past. Any interim steps which deny or minimize that opportunity should be and must be rejected by the court in the absence of a clear emergency warranting such action.

 Twenty-one candidates for the position of firefighter in Hoboken, New Jersey here move to intervene and for preliminary injunctive relief against the expiration of an eligibility list for such position on June 8, 1985. Plaintiff United States opposes the latter application, and has heretofore refused permission either to hire intervenors, or to extend the life of the eligibility list upon which intervenors are numbers twenty through forty. Intervenors *fn1" contend that plaintiff's position violates Title VII of the Civil Rights Act of 1964, as well as their constitutional rights, and that it will have serious adverse consequences for the City of Hoboken. For the reasons set forth below, intervenors' application for relief is denied.

 By Consent Decree entered into on May 30, 1980, plaintiff United States of America and defendants, including Hoboken, agreed that defendants would

. . . refrain from engaging in any act or practice which has the purpose or effect of unlawfully discriminating against any black or Hispanic employee of, or any black or Hispanic applicant or potential applicant for employment with their respective fire departments because of such individual's race, color, or national origin. Specifically, the defendants shall not discriminate against any individual in hiring, assignment, training, discipline, promotion or discharge because of race, color, or national origin.

 Consent Decree para. 1. To this end, the defendant municipalities were barred from making appointments to the rank of firefighter from certain 1978 and 1979 examination lists, except where in accord with affirmative action goals, or where necessitated by emergency. para. 2. For Hoboken, "the goal shall be to fill at least forty (40) percent of all vacancies with qualified minority applicants." para. 3(b). The defendant State of New Jersey was to establish new firefighter eligibility lists based upon state statutes and regulations "or such other less restrictive and nondiscriminatory standards as may subsequently be adopted." para. 4(a). A written examination could be "used solely on a qualifying basis" with job-related physical performance or other selection devices utilized for selection. para. 4(b). "The cut-off score on the written examination, the weights assigned to ranking devices and the duration of eligibility lists" were to be "set at a point consistent with assuring qualified candidates and with facilitating compliance with the [affirmative action] goals. . . ." Ibid. In the meantime, New Jersey was to perform a new validity study, the results of which were to be utilized in developing a new examination, to be approved by plaintiff. para. 4.

 Additionally, the defendant cities were to step up recruitment and training of minority candidates, with the help of the state. para. 5(a). All defendants were to provide racial breakdowns of test applicants, para. 5(b)(1), scores, para. 5(b)(2), and the resulting eligibility lists. para. 5(b)(3). Paragraph six of the Consent Decree then provides:

Should plaintiff United States, at any stage of the selection process set forth in paragraphs 4 and 5 above, or thereafter, determine that a city will be unable to meet its interim hiring goals based upon that selection process, the plaintiff shall expeditiously notify the affected defendants, and the affected parties including the State shall meet within a reasonable period to discuss alternative methods by which the affected fire departments could meet its goal. If the parties fail to resolve the matter, any affected party may move the ...

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