Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-18-2006

Lomack v. Newark
Precedential or Non-Precedential: Precedential

Docket No. 05-4126




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006

Recommended Citation
"Lomack v. Newark" (2006). 2006 Decisions. Paper 393.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/393


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                       PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT


                   No. 05-4126


  CHARLES LOMACK; HAROLD J. BANE, JR.; RAMON
 DOMINGUEZ; JAMES P. WILLIS; KEVIN L. JOHNSON;
 PAUL T. MAZZA; KENNETH REEDS; GARY HOLMAN;
      LUTHER ROBERSON, III; GERRELL ELLIOTT;
 CLARENCE R. BRUTON; JAMES GILES; DEAN GATTI;
    PETER J. COONEY; JOHN P. MELANI; GREGORY
HIGHSMITH; JUAN H. RAMOS; DAYON COBBS; DEBLIN
  RODRIGUEZ; RAMON RIVERA; CHARLES H. WEST;
     SCOTT WOLF; WILFREDO RIVERA; KARREEM
    JACKSON; JOHN BROWN; WYNDELL COOPER;
  SHANNON MCTIGHE; ASHTON ROBINSON; MARK
PISERCHIO; CHRIS DEMURO; NEWARK FIREFIGHTERS
  UNION; ERIC BARNES; EDWARD GRIFFITH; LEWIS
       MANNING; FRANK ZIDZIUNAS, NEWARK
 FIREFIGHTERS OFFICERS UNION, INTERNATIONAL
   ASSOCIATION OF FIRE FIGTHERS, AFL-CIO, CLC,
                  LOCAL 1860,
                              Appellants

                        v.

   CITY OF NEWARK; SHARPE JAMES; EDWARD
DUNHAM; LOWELL F. JONES; NORMAN J. ESPAROLINI


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


               Argued: June 29, 2006
           Before: BARRY, VAN ANTWERPEN and
              JOHN R. GIBSON,* Circuit Judges


              (Opinion Filed: September 18, 2006 )


David Tykulsker, Esq. (Argued)
David Tykulsker & Associates
161 Walnut Street
Montclair, NJ 07042

Counsel for Appellants


Carolyn A. McIntosh, Esq. (Argued)
Room 316
City of Newark
920 Broad Street
Newark, NJ 07102

Counsel for Appellees


John H. Findley, Esq.
Pacific Legal Foundation
3900 Lennane Drive, Suite 200
Sacramento, CA 95834

Counsel for Amicus-Appellants




       *
        The Honorable John R. Gibson, Senior Circuit Judge,
United States Court of Appeals for the Eighth Circuit, sitting by
designation.
                                2
                  OPINION OF THE COURT


BARRY, Circuit Judge

       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.1
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


       1
          Mayor James used the term “fire houses,” but there is no
evidence that there were any single-race fire houses in Newark,
and it became clear that the mandate was directed to the 108 fire
companies. Each of the fire companies is made up of three or
four firefighters working under the supervision of a fire captain
in a fire house. Each company works a designated shift known
as a tour. The parties use the terms “company” and “tour” to
refer to the small group of firefighters working together on a
particular shift. We will refer to these groups as “companies.”
                                3
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.)2


       2
        Also in 1995, the Council retained Lesli Baskerville, an
attorney, “for the purpose of examining legal documents relating
                                4
         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 Dunham, he noted that “[u]nits that have
been training together and that have achieved a high level of
efficiency [were] maintained and where we could comply with
diversity we did so.”3 (Id.)



to the Consent Decree.” (Pl. App. at 170.) Her report was not
admitted into evidence, its only purpose being to show what
action, if any, the City and the Fire Department took in response
thereto. Accordingly, and unlike the District Court, we neither
note nor rely on any of the factual allegations contained in the
report.
       3
         In his testimony at trial, Jones indicated that he used the
“probationary firefighters that came out of the training division,
as well as some of the [voluntary] transfer requests that were
made, to try to incorporate an element of diversity.” (Supp.
App. at 37-38; Pl. App. at 242.) His list did not include any
                                  5
       Dunham asked Battalion Chief Raymond Wallace to
review Jones’s list, and Wallace determined that the list would
not achieve the mandated diversity. He noted in a memorandum
to Dunham that “[i]f Chief Jones transfer list were to be used,
there would be 14 companies all Caucasian and 10 companies
African American. . . . This list does not meet the directive and
is unsatisfactory.” (Id. at 61 (emphasis in original).)
Accordingly, Wallace proposed an alternative transfer list that
would achieve 100% diversity. Dunham accepted Wallace’s
proposal. On January 15, 2003, Dunham issued “Executive
Order No. 426—Transfers & Assignments,” in which he
announced a list of transfers “effective at 0800 hours on Friday,
January 31, 2003,” and stated that “[f]uture transfer requests will
not be accepted until further notice.” (Id. at 67-70.)

       Thirty-four firefighters who were involuntarily
transferred or denied requests to transfer due to the new policy,
together with the Newark Firefighters Union and the Newark
Fire Officers Union, brought this action against the City of
Newark, Mayor James, and three officials of the Newark Fire
Department, challenging the constitutionality of the policy under
the Equal Protection Clause; Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq.; and the New Jersey Civil
Rights Act, N.J.S.A. 10:6-1 & 10-6:2. Following a bench trial,
the District Court dismissed their claims and entered judgment
for defendants. This timely appeal followed.

    II. JURISDICTION AND STANDARD OF REVIEW

        We have jurisdiction over this appeal pursuant to 28
U.S.C. § 1291. Because the diversity policy is a race-based
classification, it must pass strict scrutiny: it must be narrowly
tailored to achieve a compelling state interest. See Johnson v.
California, 

, 506 (2005) (explaining that “‘racial
classifications receive close scrutiny even when they may be
said to burden or benefit the races equally.’”) (quoting Shaw v.
Reno, 

, 651 (1993)). The District Court found that
the policy satisfied both prongs of this test. We review the


involuntary transfers.
                                6
District Court’s findings of fact for clear error. Contractors
Ass’n of Eastern Pa. v. City of Philadelphia, 

, 596
(3d Cir. 1996). The existence of a compelling state interest,
however, is a question of law that is subject to plenary review.

        The City argues that it has three somewhat interwoven
compelling interests in implementing the diversity policy. First,
it argues that it has a compelling interest in eliminating de facto
segregation in the Fire Department. Second, it contends that
there is a compelling interest in securing the “educational,
sociological and job performance” benefits of diverse fire
companies. Finally, it argues that the policy is required by the
1980 Consent Decree, compliance with which constitutes a
compelling interest. As we have already suggested, we are not
persuaded by these arguments. We will address each in turn.

       1. Remedying Past Discrimination

        It is well settled that a government has a compelling
interest in remedying its own past discrimination. See, e.g.,
United States v. Paradise, 

, 167 (1987).
Accordingly, it may employ racial classifications to cure racial
imbalances—but only if it can prove that it engaged in prior
intentional discrimination or was a “passive participant” in a
third party’s discrimination. Richmond v. J. A. Croson Co., 

, 492 (1989). “[R]ace-based preferences cannot be
justified by reference to past ‘societal’ discrimination in which
the municipality played no material role.” Contractors 

; see also Shaw v. Hunt, 

, 909-12 (1996)
(rejecting racial classifications to “alleviate the effects of societal
discrimination” in the absence of findings of past discrimination,
and to promote minority representation in Congress); 

(1989); Wygant v. Jackson Bd. of Educ., 

, 274-76 (1986) (rejecting racial classifications in a
teacher layoff policy aimed at providing minority role models for
students and alleviating past societal discrimination).

       The City does not even suggest that it participated,

                                  7
directly or passively, in any form of discrimination; indeed, it
concedes that it neither intentionally discriminated against
minority firefighters with respect to assignments or transfers, nor
intentionally segregated firefighters into racially homogeneous
companies. Moreover, the City concedes that single race fire
companies resulted, not from “Fire Department management,”
but from the “tendency on the part of management to allow
people to work where they choose to work,” and to
accommodate their desire to work in the neighborhoods where
they live. (Pl. App. at 334, 335). Accordingly, the remedial
justification for the use of racial classifications is wholly
inapplicable here, and the District Court’s finding to the contrary
is clearly erroneous.

        The City nevertheless argues that it can employ a racial
classification to eliminate what it characterizes as “de facto
segregation” in the Fire Department. De facto segregation is
defined as “[s]egregation which is inadvertent . . . and not caused
by any state action.” Black’s Law Dictionary (6th ed.); see also
Washington v. Davis, 

, 240 (1976) (“‘The
differentiating factor between de jure segregation and so-called
de facto segregation . . . is purpose or intent to segregate.’”)
(quoting Keyes v. School Dist. No. 1, 

, 208 (1973));
Reginald Oh, Race Jurisprudence and the Supreme Court:
Where Do We Go From Here?: Discrimination and Distrust, 7
U. PA. J. CONST. L. 837, 859-860 (2005) (“[D]e facto
segregation is considered a ‘nondiscriminatory’ form of
segregation.”).4 The City relies on Brown v. Board of


       4
         It has been noted that the term “de facto segregation” is
somewhat of an oxymoron because “‘segregate’ is a transitive
verb [that] requires an actor to do an act which effects
segregation.” Parents Involved in Cmty. Sch. v. Seattle Sch.
Dist., 

, 1196-97 (9th Cir. 2005) (Bea, J.,
dissenting); see also 

(“It should be remembered . . .
that one can no more ‘segregate’ without a person actively doing
the segregation than one can separate an egg without a cook.”).
Judge Bea also noted that this “rhetorical ploy” is “clearly
understandable” since it is “much easier to argue for measures to
end ‘segregation’ than for measures to end ‘racial imbalance.’
                                8
Education, 

(1954), to support its assertion that
government has a compelling interest in eliminating de facto
segregation. This reliance is misplaced. Brown involved de jure
(i.e., intentional) segregation.5 In Brown, and in the later
desegregation cases, the Supreme Court held that the
remediation of de jure segregation justifies the use of a racial
classification. This holding has never been extended to
encompass unintentional – de facto – segregation. Accordingly,
while we agree with the City that the elimination of de facto
segregation may well benefit individual employees and society
at large and is, indeed, a laudable goal, we cannot agree that
doing so constitutes a compelling interest that can be achieved
by means of a racial classification.

      2. Educational and Sociological Benefits of Diverse
Fire Companies

       In Grutter v. Bollinger, 

(2003), the Supreme
Court clarified that non-remedial goals may also justify race-
based classifications in certain circumstances. 

(“It is
true that some language in [earlier] opinions might be read to
suggest that remedying past discrimination is the only
permissible justification for race-based governmental action. . . .
But we have never held that the only governmental use of race
that can survive strict scrutiny is remedying past
discrimination.”). Specifically, the Grutter Court held—quite
narrowly—that the “educational benefits” of a diverse student



Especially is this so in view of the U.S. Supreme Court’s
frequent pronouncements that ‘racial balancing’ violates the
Equal Protection Clause.” 

1198.
       5
         In direct contrast to de facto segregation, “[t]he essential
element of de jure segregation is ‘a current condition of
segregation resulting from intentional state action.’”

(quoting 

);
see also 3 Ronald D. Rotunda & John E. Nowack, Treatise on
Constitutional Law § 18.9(2)(1) (3d ed. 1999) (“De jure (‘by
law’) segregation is racial separation which is the product of
some purposeful act by government authorities.”).
                                 9
body are a sufficiently compelling interest to justify race-based
enhancements of minority students’ applications to law school.6

-33.

        The City argues that it has a compelling interest in
integrating its fire companies because “integration in the
workplace is no less important than in an educational setting.”
(Appellees’ Br. at 30.) Specifically, it contends that
“integration in fire companies leads to greater camaraderie
between coworkers, acceptance and consideration for people of
varying backgrounds, sharing of information and study support.
It also promotes tolerance and mutual respect among
colleagues.” (Id.) The District Court agreed, as do we, but
went on to find that the “educational, sociological, and job-
performance enhancements” supported, if not by themselves
compelled, the diversity policy. With that, we disagree.

       Initially we note that the under-inclusiveness of the
diversity policy, specifically its failure to consider gender, other
ethnic groups, age, or socio-economic class, seems to belie
Newark’s claim that “educational benefits” were its actual
purpose.7 It bears mention, as well, that neither Mayor James
nor the Fire Department officials called upon to implement the


       6
           The Court accepted the argument of the school and
various amici that the University of Michigan Law School
needed to enroll a “critical mass” of minority students in order to
fulfill its educational mission and prepare students for successful
careers in an increasingly diverse workforce. 

The
Court agreed that it was essential for students to be exposed to
“widely diverse people, cultures, ideas, and viewpoints,” 

it was “necessary that the path to leadership be visibly open
to talented and qualified individuals of every race and ethnicity”
in order to “cultivate a set of leaders with legitimacy in the eyes
of the citizenry,” 

       7
         “To be a compelling interest, the State must show that
the alleged objective was the legislature’s actual purpose for the
discriminatory classification.” Shaw v. Hunt, 

, 908
n.4 (1996) (internal quotation marks and citations omitted).
                                 10
diversity policy referred to “educational benefits” or anything
akin thereto as a reason for the policy. By accepting educational
benefits as an interest compelling the policy, however, the
District Court, at least implicitly, found that that was the City’s
“actual purpose,” or at least one of its purposes.

       We need not resolve whether or not the District Court’s
finding was clearly erroneous, because even if the alleged
“educational benefits” were an “actual purpose,” they do not
constitute a compelling interest in the circumstances presented
by this case. While Grutter established that educational benefits
are compelling in a law school context, we do not find its
holding applicable in the firefighting context. See 

(“Context matters when reviewing race-based
governmental action under the Equal Protection Clause.”).

        The “relevant difference,” 

law school and a
fire department is their respective missions. The mission of a
school is to educate students, “prepar[e] students for work and
citizenship,” and cultivate future leaders. 

332. The
Grutter Court found, based on extensive testimony and other
evidence, that a “critical mass” of diverse students was necessary
for the University of Michigan Law School to effectively
achieve this mission. But Grutter does not stand for the
proposition that the educational benefits of diversity are always a
compelling interest, regardless of the context. Rather, it stands
for the narrow premise that the educational benefits of diversity
can be a compelling interest to an institution whose mission is to
educate.

        The Fire Department’s mission is not to educate. Its
mission is “the control, fighting and extinguishment of any
conflagration which occurs within the city limits.” Newark, N.J.
General Ordinances v. I, tit. II, ch. 21, § 1.2 (2005).
Accordingly, Grutter’s holding regarding a compelling interest
in the educational benefits of diversity is unavailing here. And,
we note, the City does not argue that diversity within individual
fire companies is in any other way necessary, or even beneficial,
to the Fire Department’s mission of fighting fires, i.e., that the



                                11
Department has an operational need for diverse fire companies,8
and we do not read the City’s assertions of increased
“camaraderie,” “acceptance,” and “tolerance” as making such an
argument. Even if we were to liberally construe those assertions
as an operational needs argument, however, utterly no evidence
supports it. See Patrolmen’s Benevolent 

-
53 (citations omitted) (“[C]ourts recognizing the [operational
needs] defense have required the government actor to
demonstrate that it is ‘motivated by a truly powerful and worthy
concern and that the racial measure . . . adopted is a plainly apt
response to that concern.’ The justification must be
substantiated by objective evidence . . . .”).

       In sum, we conclude that the benefits of diversity, as set
forth by the City, are not a compelling interest that justifies its
diversity policy.

       3. Compliance With the 1980 Consent Decree

      The City also argues that compliance with the 1980
Consent Decree constitutes a compelling interest. This, too, is
unavailing. Compliance with a consent decree may certainly be
a compelling interest, see Citizens Concerned About Our
Children v. Sch. Bd. of Broward County, Florida, 

         Courts have found such “operational needs” arguments
to be persuasive in the law enforcement context. See, e.g., Petit
v. City of Chicago, 

, 1114 (7th Cir. 2004) (finding
a “compelling operational need for a diverse police department”
in a “racially and ethnically divided major American city”);
Patrolmen’s Benevolent Ass’n v. New York, 

, 52 (2d
Cir. 2002) (“We have recognized that ‘a law enforcement body’s
need to carry out its mission effectively, with a workforce that
appears unbiased, is able to communicate with the public and is
respected by the community it serves,’ may constitute a
compelling state interest.”). In a sense, Grutter could itself be
characterized as an “operational needs” opinion. The Supreme
Court essentially found that law schools have an operational
need for a diverse student body in order to effectively achieve
their educational mission.
                                 12
1285, 1292-94 (11th Cir. 1999) (explaining that violation of a
consent decree “is punishable by contempt,” and “[a]voiding
contempt and respecting the court that entered the consent
decree suffice to make obedience a compelling interest”), but
only if the decree mandates the race-based policy at issue:

       When the compelling interest is compliance with a
       court order, that means that the governmental
       entity must face a likelihood of contempt under the
       order if it abandons the racial policy. The reason is
       obvious: any policy that exceeds the bare
       requirements of the order no longer closely fits the
       compelling interest because abandoning the policy
       is consistent with respecting the court, avoiding
       contempt liability, and righting the wrongs
       underlying the decree.

        The Consent Decree says nothing about the diversity
policy at issue here, much less does it require the City to engage
in that policy. The Decree establishes policies and benchmarks
for the hiring and promotion of minority firefighters, with the
only language even arguably relevant here found in one
paragraph of the twelve-page Decree where the defendants were
prohibited from making unlawfully discriminatory assignments.
Reading a complete diversity requirement into that prohibition,
however, particularly where, as here, it is conceded that there
was no unlawful discrimination, would stretch that language
beyond its logical or intended limits. Fire Department officials
effectively admit as much. Stanley Kossup, Director of the Fire
Department from 1988 to 2002, testified that he did not believe
that the existence of single-race fire companies violated the
Consent Decree. Similarly, Edward Dunham, who served as
Director of the Fire Department from 2002 to 2004 after serving
as the Affirmative Action Officer in the late 1990s, testified that
the Consent Decree did not mandate the elimination of single-
race fire companies and that issue of single-race companies
“never came up” before the “consent decree committee” on
which he served. (Id. at 308.)


                                13
       4. Summary of Compelling Interest

        In the concluding paragraphs of its analysis, the District
Court implied that the three interests—remedying past
discrimination, educational and sociological benefits of
diversity, and compliance with the Consent Decree—together
constitute a compelling interest. (Id. at 34 (“When one ‘strictly
scrutinizes’ the Newark transfer policy and finds it to be
designed to eliminate de facto segregation in its firehouses, in
pursuit of the mandate of the Consent Decree to which it was a
party, with attendant educational, sociological and
job-performance enhancements as well, one is led to the
inevitable conclusion that this policy was implemented to
achieve a ‘compelling interest’ of the City.”).) As explained
above, however, we simply cannot conclude that, individually or
in the aggregate, these interests are compelling.9

                      III. CONCLUSION

        We conclude this opinion as we began, by reiterating
what this case is not about. It is not about remedying intentional
discrimination in the Newark Fire Department. It is not about
improving the Department’s ability to extinguish fires. It is not
about whether diverse work places are good for employees or for
society or whether long-range hiring goals are being met. This
case is about whether Newark can “create[] a rainbow” in each
of the 108 companies solely by means of a racial classification.
We hold that it cannot. Racial balancing, and that is what this is,
simply cannot be achieved by means of a racial classification
without running afoul of the Equal Protection Clause of the
Constitution. Grutter v. Bollinger, 

, 330 (2003)
(explaining that “outright racial balancing . . . is patently
unconstitutional”); see also Freeman v. Pitts, 

, 494
(1992) (“Racial balance is not to be achieved for its own sake.”).
Accordingly, we will reverse the order of the District Court, and
remand for further proceedings consistent with this opinion.


       9
         Because we find that the diversity policy does not
further a compelling state interest, we need not determine
whether the policy is narrowly tailored.
                                14
15