APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY D.C. Civil No. 04-cv-06085 District Judge The Honorable John W. Bissell.
The opinion of the court was delivered by: Barry, Circuit Judge
Before: BARRY, VAN ANTWERPEN and JOHN R. GIBSON,*fn1 Circuit Judges.
On July 1, 2002, Sharpe James, newly re-elected as Mayor of Newark, New Jersey, issued a "mandate" in his inaugural speech that, "to improve morale," all single-race fire companies in the Newark Fire Department would be eliminated.*fn2
The racial composition of each of the 108 fire companies was thereafter examined, and dozens of firefighters were involuntarily transferred to different companies solely on the basis of their race. In January 2004, Mayor James announced that "[w]e have created a rainbow at each firehouse." (Pl. App. at 74). The firefighters sued, and lost.
It is important at the outset to note what this case is not about. This case is not about whether diverse workplaces are desirable. It is not disputed that they are. Neither is this case about a remedy for unlawful past discrimination because, again, it is not disputed that there was no unlawful discrimination in the past. And this case is not about whether the numbers of minority firefighters being hired are satisfying long-range hiring goals. Rather, this case is about whether the City of Newark may employ a race-based transfer and assignment policy when any racial imbalance in the 108 fire companies is not the result of past intentional discrimination by the City. We hold that it may not and, accordingly, will reverse the District Court's entry of judgment for the defendants.
I. BACKGROUND AND PROCEDURAL HISTORY
In 1977, the United States filed a complaint against the State of New Jersey, several New Jersey officials, the City of Newark, and eleven other New Jersey cities alleging "a pattern or practice of discrimination" in the hiring and promotion of minority firefighters. A Consent Decree resolving the United States' claims was approved and entered by the District Court in 1980. The Consent Decree did not contain a finding that any unlawful discrimination had occurred, but did require the various defendants "to undertake affirmative action to increase substantially the proportion of black and Hispanic personnel on their respective fire departments." With respect to the Newark Fire Department, the Decree called for an interim goal of at least 60% of all vacancies to be filled with qualified minority candidates.
Fifteen years passed, and in 1995, the Newark City Council hired Samuel Rosenfarb, a certified public accountant, to "determine [statistical] compliance with [the 1980] consent decree." (Supp. App. at 90.) Rosenfarb reported his findings to the Council in a December 1995 report, which indicated that 68.8% of the Fire Department's uniformed employees were white, 24% were black, and 6.9% were Hispanic. He also reported that of 195 promotions granted between 1980 and 1994, 168 were given to white employees, twenty-four to black employees and three to Hispanic employees. In conducting his analysis, Rosenfarb noticed that "the [companies] were significantly homogenous either black or white." (Id.) His report noted that 81 of the 108 companies "had a majority of white personnel with 30 being comprised entirely of white personnel. Fifteen of the [companies] were predominantly black . . . . Only one . . . had a majority of hispanics. The remaining eleven [companies] did not contain a majority of any one group." (Pl. App. at 124.)*fn3
The City took no action with respect to the existence of single-race fire companies for another seven years. Then, in July 2002, Mayor James, apparently out of the blue, ordered that all fire houses, i.e., companies, in the Newark Fire Department be integrated "to improve morale" and "to honor a court order to make our Fire Department the mirror of the City of Newark . . . ." (Id. at 55). With reference to the former, we note, there is no evidence that morale needed improving; with reference to the latter, the by-then twenty-two year old Consent Decree required no such thing.
The Mayor appointed the Department's former Affirmative Action Specialist, Edward Dunham, as the new Director of the Fire Department, and charged him with implementing this "diversification order." (Id. at 54.) Dunham, in turn, directed Fire Chief Lowell Jones to diversify the fire companies. In a November 27, 2002 letter to Chief Jones, Dunham directed Jones to "formulate a mass departmental transfer list." (Id. at 56.) Jones did so, and in so doing, "tried to achieve an element of diversity as well as assign department personnel as per their specialized training." (Id. at 57.) He also considered the "need to maintain a high degree of readiness in [the] face of world and/or domestic terrorist threats." (Id.) In his memorandum to ...