UNITED STATES OF AMERICA, PETITIONER V. PHILLIP PARADISE, JR., ET
AL.
   No. 85-999
   In the Supreme Court of the United States
   October Term, 1986
   On Writ of Certiorari to the United States Court of Appeals for the
Eleventh Circuit
   Reply Brief for the United States
   It is not hard to see why respondents and their amici should devote
so many words and such lofty rhetoric to questions of law not properly
before this Court and to questions of fact now raised by the record
below.  Respondents and amici have much to say about the propriety as
a general and abstract matter of numerical race-conscious relief,
about the desirability of having black officers in the upper ranks of
a police force to satisfy "operational needs," and about the
lamentable role of the Alabama State Troopers in the civil rights
struggles of the sixties.  But respondents and amici have remarkably
little to say about the precise and narrow issue on which this Court
granted certiorari:  whether in the particular context of this case --
a context that included an alternative proportional promotion schedule
offered by the defendants and acquiesced in by the United States --
the district court's order of a one-for-one quota was sufficiently
"narrowly tailored" to satisfy the demands of strict scrutiny under
the Equal Protection Clause.
   1. Before all it is imperative to keep in sight the fact that the
district court ordered the one-for-one promotion quota in the face of
an offer by the Department of Public Safety to effect the next batch
of promotions by promoting four blacks and eleven whites.  This offer
was made in response to the district court's order -- the order that
furnished the occasion for this phase of the litigation -- that the
Department submit "a plan to promote to corporal, from qualified
candidates, at least 15 persons in a manner that will not have an
adverse racial impact" (J.A. 123).  The district court not only
rejected the Department's offer, but stated that, had the moving
plaintiffs argued "that all 15 of the new corporals should be black,"
it would have been inclined to grant that request too (Pet. App. 61a
n.1).  Now on another day in another case there may be occasion to
inquire whether a promotion schedule like that offered by the
Department is necessary and appropriate to comply with a consent
decree requiring that an employer maintain a promotion system that
"will have little or no adverse impact upon blacks" (J.A. 40).  But in
the instant case the question is not whether resort to race-conscious
relief is permissible as a general matter;  the consent decrees, whose
validity is unquestioned here, by their terms "mandated race-conscious
promotion procedures" (Resp. Br. 22).  The district court was thus
confronted with alternative race-conscious promotion proposals, and
the question in this case is whether the one that it adopted was
"narrowly tailored" within the meaning of this Court's decisions.
   When all the smoke generated by our opponents' rhetoric clears, one
is surprised to conclude that they seem in large measure to agree with
our basic position.  Respondents effectively concede that the
one-for-one quota should be tested under "strict scrutiny" (Br.
17-18);  they seem to agree that the quota cannot be defended as a
mere effort to promote "racial balance" (id. at 25);  and they appear
to concede that the quota's legitimacy must be gauged by analyzing it
as a measure designed to "enforc(e) the Department's consent decree
commitments" (id. at 18, 20, 25, 26).  Against this backdrop of
consensus, our contention is a simple one -- that the district court's
imposition of a one-for-one quota was not an appropriate method
(indeed, was scarcely even a rational method) of enforcing the
Department's consent decree commitments, and hence it served no
legitimate function;  when compared with the Department's own
proposal, the one-for-one quota thus stands revealed as a harsh and
ill-considered gesture of impatience rather than a remedy carefully
tailored to avoid unnecessarily trammelling the rights of innocent
white candidates.
   One might say that respondents in a sense agree even with this
latter contention of ours because they seem to concede that the
one-for-one quota imposed at the time of February 1984 promotions had
no intrinsic appropriateness.  Respondents seek to justify that quota
principally on the grounds that it was "temporary" and "conditional"
(Br. 27).  So one is moved to ask:  temporary until when, and
conditional upon what?  And the astonishing answer that comes from
those who oppose us is that the time is July 27, 1984, and that the
promotions carried out on that date were quite sufficient to satisfy
the condition.  But that set of promotions, which advanced three
blacks and ten whites to the rank of corporal (Pet. App. 47a;  J.A.
160, 163-164), was no more favorable to blacks -- indeed, it was
marginally less favorable to blacks -- than the four-for-eleven
promotion schedule originally offered by the Department, acquiesced in
by the United States, and rejected by the district court in favor of
the one-for-one quota that we challenge today.  Respondents thus
defend the quota, not intrinsically, but as a device to get the
Department to do what it had already declared itself ready and willing
to do.
   2. Respondents seek to extricate themselves from this dilemma by
raising the spectre of the Department's "history of recalcitrance"
(Br. 13) and "history of obstructionism" (id. at 33), asserting that
extreme measures were needed to overcome such resistance.  We are
quick to acknowledge that the Department's history -- including some
events long past -- lends surface appeal to this argumentative tack.
The Alabama Department of Public Safety unquestionably behaved
shamefully during the civil rights struggles of the sixties;  it was
properly found guilty of racial discrimination in 1972;  and it was
properly reprimanded for foot-dragging in remedying that
discrimination in 1975.  But the propriety of the one-for-one
promotion quota must be assessed as of the date on which it was
imposed, and we do not think that the Department in December 1983
could fairly be charged with recalcitrance or with operating what
amicus calls a "regime of racism" (Lawyers' Comm. Amicus Br. 7, 12).
   As of December 1983, the Department had faithfully complied with
the one-for-one hiring quota for eight years, to the point where the
overall trooper force was "approximately 22%-23% black" (J.A. 62).
/1/ The Department signed a consent decree respecting promotions in
1979, and the record shows that during the ensuing four years the
Department was continuously engaged in efforts to satisfy the dual
requirements -- concerning "validation" and "no adverse impact" --
that the consent decree imposed.  Consistently with the 1979
"Agreement of Counsel" (J.A. 46-48), the Department promoted four
blacks and six whites as an interim measure (J.A. 62) and proceeded to
develop a new corporal's examination that was submitted for approval
in April 1981 (Pet. App. 12a & n.8).  The parties disagreed about the
examination's validity, as the 1979 decree had contemplated that they
might do (see id. at 69a), and the parties accordingly signed a second
consent decree in 1981.  As required by the latter decree, the
Department administered and scored the corporal's examination, then
analyzed its results to ascertain whether it had an "adverse impact."
When Paradise and the United States protested that it did, the
Department offered to rectify the imbalance by promoting blacks at a
20 per cent rate commensurate with their availability (J.A. 61).  When
Paradise rejected this offer (ibid.) and moved for enforcement of the
decrees, the Department promptly responded with a proposal to promote
four blacks and eleven whites, a proposal that squarely satisfied the
district court's order that it submit a plan to promote "at least 15
persons in a manner that will not have an adverse racial impact" (J.A.
123).  And after the district court rejected that offer and instead
imposed the one-for-one quota that we challenge, the Department
promptly submitted procedures for promotions first to corporal and
then to sergeant, procedures that the district court has provisionally
approved.  See U.S. Br. 12-13 & n.5.
   This history does not smack of recalcitrance or obstructionism.
The chief fault that may be laid at the Department's door after 1979
was its failure to submit, within the promised one-year period, a
procedure for corporal promotions that complied with the 1979 decree.
See U.S. Br. 5-6;  Resp. Br. 22-23.  But this tardiness cannot be
thought to evidence "recalcitrance" given the difficulty of the task
that the Department had undertaken.  The 1979 decree required that the
promotion procedure both be validated as job-related under the Uniform
Guidelines and "in addition, * * * have little or no adverse impact on
blacks" (J.A. 40).  As the district court itself recognized in
declining to require validation of the Department's hiring procedures
in 1972, the validation process alone can "take several years." NAACP
v. Allen, 340 F. Supp. 703, 706 (M.D. Ala. 1972).  And as the parties
recognized below (Pet. App. 66a), the existence of an "adverse impact"
cannot be determined until a promotion procedure, once developed, has
actually been administered and its results scrutinized.  The
Department's pledge to accomplish this within a year might well be
thought ambitious, and there is nothing in the record to suggest that
its failure to meet that deadline evidenced bad faith.  /2/
   Whatever construction is put on the Department's failure to meet
its deadline, respondents still do not explain why a one-for-one quota
should have been imposed instead of the four-for-eleven schedule that
the Department proffered.  Respondents suggest by their rhetoric that
the quota was needed to goad the Department into making the concededly
satisfactory responses that it has made since the one-for-one quota
entered the picture.  But if that is respondents' argument, it falls
of its own weight.  The concededly satisfactory responses that the
Department has since made consist of promoting three blacks and ten
whites to corporal and promoting two blacks and eleven whites to
sergeant.  See U.S. Br. 12-13 & n.5.  But those responses were no more
consistent with the consent decree's no-adverse-impact standard than
was the Department's original proposal to promote four blacks and
eleven whites, an offer that the district court rejected.  If the
district court saw fit to suspend the one-for-one quota for the July
and August promotions, it is hard to see why the quota had to be
applied to the February promotions either -- except perhaps as a
symbolic gesture to show that the district court really meant
business.  We think that this Court's decisions requiring that
race-conscious remedies be tested by "strict scrutiny" require
something more than this.
   3. Even if respondents had demonstrated a need for a remedy with in
terrorem aspects, the one-for-one promotion quota would nonetheless be
impermissible.  In judging whether race-conscious remedies are
"narrowly tailored," a court must consider "whether lawful alternative
and less restrictive means could have been used." Wygant v. Jackson
Board of Education, No. 84-1340 (May 19, 1986), slip op. 11 & n.6
(opinion of Powell, J.).  In our opening brief (at 23-30), we
emphasized that less restrictive alternatives were plainly available
to the district court:  it could have accepted the Department's offer
to promote four blacks and eleven whites, solving the immediate need
to promote 15 corporals "within the spirit of * * * the parties'
consent decrees" (J.A. 59);  and, if an in terrorem message were also
judged necessary, it could have imposed fines or other sanctions (such
as the appointment of an administrator) pending the Department's
development of an acceptable long-term promotion plan.  We noted also
that race-neutral devices could have been used to expedite the
progress of blacks into the Department's upper ranks, such as
modification of the Department's time-in-grade or
promotion-from-within rules.  See U.S. Br. 35 n.17.
   Respondents and amici make no serious effort to demonstrate the
inefficacy of these alternatives.  Respondents assert that adoption of
the Department's four-for-eleven proposal, standing alone, "would have
done nothing to prevent continued recalcitrance," and that the
imposition of sanctions, standing alone, "would not have allowed the
Department to meet its immediate need of at least 15 new corporals"
(Resp. Br. 32).  This statement is quite beside the point, for we
suggested that these remedies be invoked, not in isolation, but in
conjunction.  Respondents (Br. 32), joined by amicus Lawyers'
Committee (Br. 8, 20, 25, 26-27), assert that appointment of an
administrator or modification of time-in-grade rules would have been
constitutionally objectionable because "more intrusive on the
Department." But this Court's decisions mandating consideration of
less intrusive alternatives to racial quotas plainly require a focus
on alternatives that are less racially intrusive;  "intrusiveness"
must be judged by impact upon the disadvantaged racial group, not upon
the employer as an institution.  And we know of no support whatsoever
for the idea that racial quotas are to be preferred to fines as a
means of enforcing consent decrees, on the theory that "(m)oney
sanctions would harm only (the state's) taxpayers" (Lawyers' Comm.
Amicus Br. 25).  /3/
   4. In our opening brief (at 30-35), anticipating a possible
argument of respondents, we urged that the one-for-one quota could not
be independently justified as a measure designed to achieve "racial
balance." Although respondents and amici speak of the desirability of
racial balance as a long-term societal goal, we do not understand them
at the end of the day to rely on racial balance to justify the
district court's application of the one-for-one promotion quota.  As
we have said, respondents praise the quota as strictly "temporary" and
"conditional" and emphasize that it "has been used for only one set of
promotions" (Br. 27).  The irrelevancy of the quota's efficacy in
achieving racial balance is thus effectively conceded, and we see no
need to reiterate our arguments on this score.  /4/
   5. Whereas respondents seek to justify the one-for-one quota as a
mode of "enforc(ing) the Department's consent decree commitments" (Br.
25), amici proffer various alternative rationales.  The Lawyers'
Committee urges that the quota satisfies strict scrutiny because it
was designed to eradicate a supposed "institutional bias" against
black candidates for promotion (Br. 7, 8, 12, 16, 18, 20, 24, 25).
This argument aims to capitalize on this Court's observation in Sheet
Metal Workers v. EEOC, No. 84-1656 (July 2, 1986), that "the lingering
effects" of past discrimination may include "informal mechanisms
(that) obstruct equal employment opportunities," such as an old-boy
network that frustrates black applicants (slip op. 24, 51-52
(plurality opinion), cited in Lawyers' Comm. Amicus Br. 11).  Amicus
would have this Court believe that the district judge made findings of
fact concerning the existence of "institutional bias," then carefully
tailored a remedy in the form of a one-for-one quota specifically to
address that problem.  Indeed, amicus asserts that "(t)he district
court's choice of this ratio * * * (was) based on its conclusion that
institutional bias persists" (Br. 21) and "was based on its
determination * * * that lesser measures could not adequately and
expeditiously dismantle the Department's institutional bias" (id. at
8).
   Amicus has made all of this up out of whole cloth.  The words
"institutional bias" recur at least twenty times in amicus's brief;
one searches the record in vain for that phrase.  The truth is that
this argument was not raised by any party below and was neither relied
on nor mentioned by either court below.  The issue of promotions has
been addressed exclusively in consent decrees and never at trial, and
no evidence has even been submitted about the existence of "informal
mechanisms" or "institutional bias" that might impede blacks' access
to the upper ranks of the Department.  The pattern of promotions since
1979 surely suggests no inference of "institutional bias," for each
set of promotions to corporal since 1979 has been at least
proportional as between blacks and whites.  Because the district court
was faced with no allegations of "institutional bias," and because the
Department a fortiori has had no opportunity to rebut such
allegations, it is not possible here to assess whether the elimination
of "institutional bias" would be a compelling governmental interest.
Nor is it possible, in the absence of any factual predicate, to
determine whether a one-for-one promotion quota would qualify as
"narrowly tailored" to address such an objective.
   Much the same can be said of the argument, advanced by several
amici, that the one-for-one quota satisfies strict scrutiny because it
was designed to meet the "operational needs" of the Alabama Department
of Public Safety, such as the need to assure good community relations.
 See Lawyers' Comm. Amicus Br. 18;  New York Amicus Br. 3, 8-9;
Detroit Amicus Br. 5-16;  NAACP Legal Defense Fund Amicus Br. 33-35.
This argument apparently seeks to capitalize on Justice Stevens'
dissent in Wygant, where he suggested that the exigencies of law
enforcement may sometimes rationalize race-conscious classification.
"To take the most obvious example," Justice Stevens wrote, "if an
undercover agent is needed to infiltrate a group suspected of ongoing
criminal behavior -- and if the members of the group are all of the
same race -- it would seem perfectly rational to employ an agent of
that race rather than a member of a different racial class" (slip op.
2-3).  "Similarly," Justice Stevens continued, "in a city with a
recent history of racial unrest, the superintendent of police might
reasonably conclude that an integrated police force could develop a
better relationship with the community and thereby do a more effective
job of maintaining law and order" (id. at 3).
   The short answer to amici's argument is that this "operational
needs" theory, like the "institutional bias" theory, was not advanced
by any party and was not addressed by either court below.  Even if
there were a factual predicate for this argument, which there is not,
the argument could not be presented, least of all by an amicus, for
the first time in this Court.  There is thus no occasion for the Court
here to consider if and when the satisfaction of a law enforcement
agency's operational needs might be a "compelling governmental
interest" justifying race-conscious classification, or whether a
one-for-one promotion quota could ever qualify as "narrowly tailored"
to achieve such a goal.  /5/
   6. Respondents and amici seek to minimize the impact of the
one-for-one quota on white competitors for promotions, and to
assimilate that burden to the more diffuse burden found by this Court
to be acceptable on occasion in the case of race-conscious remedies at
the hiring stage.  Respondents are far from appreciating the real harm
that this quota inflicts.  One must consider both "the effect * * *
and the diffuseness of the burden imposed on innocent nonminorities."
Sheet Metal Workers, slip op. 6 n.3 (Powell, J., concurring (emphasis
added).
   The one-for-one quota is objectionable in both respects.  The
effect of the quota is to frustrate innocent persons' legitimate
promotional expectations;  contrary to respondents' suggestion (Br. 9
& n.10, 41 & n.42), those expectations are not based on seniority
alone, but are premised on the right to be considered for civil
service promotion based on one's merit rather than on the color of
one's skin.  See Regents of the University of California v. Bakke, 438
U.S. 265, 319 n.53 (1978) (opinion of Powell, J.) ("Fairness in
individual competition for opportunities, especially those provided by
the State, is a widely cherished American ethic.").  And the impact of
the quota, while not focused uniquely upon a single individual, is
plainly not diffused "among society generally," as may be true when
hiring is involved (Wygant, slip op. 14-15 (opinion of Powell, J.)).
The individuals passed over by operation of the instant quota were
readily identifiable, particularly since the Department normally made
promotions in rank order (subject to the "rule of three") based on
competitive results.  /6/ And whereas an individual at the hiring
stage typically has the option of applying for many jobs, a
trooper-level employee hoping for promotion in the Alabama Department
of Public Safety has only one job for which to apply, and that is the
job of corporal.
   7. Finally, respondents seem to suggest (Br. 27) that the district
court was free to dispense with all measure of consideration and
restraint because it was simply enforcing a consent decree to which
the Department had previously agreed.  To lend color to this
suggestion, respondents stress the district court's closeness to the
case and its familiarity with local conditions.  Decisions to impose
racial quotas, respondents say, should be reviewed under an
abuse-of-discretion standard (Br. 28), like decisions about misjoinder
of parties.
   A district court's enforcement powers, alone or strengthened by a
tincture of local expertise, cannot serve as a universal solvent,
doing away with all constitutional limitations.  A district court
generally has wide latitude in declaring remedies;  but when the
remedy discriminates on the basis of race, the court's action must be
closely examined.  Strict scrutiny would not be strict if
race-conscious remedies were scanned only to see if discretion had
been abused.  /7/ Respondents rather cavalierly dismiss the rights of
white applicants for promotion, suggesting that this case really comes
down to numbers and that, when it comes to numbers, one can give or
take a few without its much mattering.  Whether a different array of
numbers "would have served the purpose of the district court's
one-for-one order equally well," respondents assert, "is not the
question" before this Court (Br. 37).  To the contrary, if strict
security means what we believe it means, that emphatically is the
question.  Although respondents properly recognize that the dispute
before this Court is a narrow one, they err in trivializing the
importance of the constitutional principles at stake.
   For these reasons and those set forth in our opening brief, the
judgment of the court of appeals should be reversed with respect to
the question presented.
   Resectfully submitted.
   CHARLES FRIED
      Solicitor General
   OCTOBER 1986
   /1/ The Lawyers' Committee as amicus asserts (Br. 6) that "(t)he
Department has continuously frustrated (the district court's 1972)
order." While the Department concededly sought to frustrate the
district court's 1972 order until 1975, there is absolutely no
evidence in the record that it did so after 1975, there is absolutely
no evidence in the record that it did so after 1975.  Indeed, it
appears that the percentage of blacks in the overall trooper force has
now reached parity (25%), so that the specific objective of the
district court's 1972 order has now been accomplished.  See U.S. Br. 4
n.1.
   /2/ Respondent's suggest (Br. 31 n.31) that recalcitrance may be
inferred from the fact that, "(a)fter having failed for almost five
years to develop a promotion procedure that conformed to its consent
decree commitments, the Department developed what it claimed was an
acceptable procedure within seven months" after the one-for-one quota
was imposed.  This suggestion borders on the disingenuous.  In
approving in July 1984 the Department's proposal to promote three
blacks and ten whites, the district court concluded that that
selection procedure satisfied one of the Department's consent decree
commitments, viz., the requirement that promotions be made with no
adverse impact on blacks.  Of course, the Department's earlier
proposal to promote four blacks and eleven whites would have satisfied
that requirement just as well.  The district court, however, did not
conclude that the July 1984 procedure satisfied the second of the
Department's consent decree commitments, viz., the requirement that
the procedure be validated as job-related.  To the contrary, the court
directed the parties to "proceed with discovery on the issue whether
the selection procedure * * * can be validated as job-related pursuant
to The Uniform Guidelines * * * and thus shown to be in compliance
with the 1979 and 1981 consent decrees" (J.A. 164).  As noted in the
text and in our opening brief (at 24-25 n.13), the validation process
is extremely time-consuming.
   /3/ Other amici make equally inaccurate statements about the
availability of alternative remedies.  The City of Birmingham asserts
that the district court in 1983 was "faced with the two unacceptable
alternatives" of "an outright ban on * * * promotions, or continued
use of a discriminatory selection procedure" (Br. 26 (original
quotations omitted)).  That statement is doubly flawed:  none of the
Department's selection procedures for promotion has ever been found to
be "discriminatory," and the district court in any event was faced
with other lawful alternatives, most notably the Department's
four-for-eleven proposal.  The NAACP Legal Defense Fund asserts (Br.
11-12) that "(p)lainly the court below considered the availability and
efficacy of other remedies." The court below plainly did not;  at
least it did not consider them in its written opinion.
   /4/ Although respondents seem to agree that the furthering of
racial balance is not a compelling governmental interest, they suggest
at one point that the "racial imbalances" in the Department's upper
ranks are "obvious effects" of past discriminatory practices, and that
the one-for-one quota is justifiable as an attempt to eliminate such
alleged "effects" (Resp. Br. 25-26).  Apart from the fact that the
consent decrees themselves, in mandating the implementation of a
proportional promotion procedure, already contained a mechanism to
expedite blacks' progress into the Department's upper ranks,
respondents' argument in any event is incorrect.  As we discussed in
our opening brief (at 30-35), this Court made clear last Term that
race-conscious remedial efforts are appropriate only to remove
continuing barriers, such as "informal mechanisms (that) obstruct
equal employment opportunities" (Sheet Metal Workers v. EEOC, No.
84-1656 (July 2, 1986), slip op. 24 (plurality opinion)), rather than
to bring about some ideal racial balance that would theoretically have
existed if the employer had never discriminated at all.  See, e.g.,
Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 587-588
(1984) (O'Connor, J., concurring) ("(A) court may use its remedial
powers * * * only to prevent future violations and to compensate
identified victims of unlawful discrimination.") (citations omitted).
Cf. Swann v. Charlotte-Mecklenburg Bd. of Education, 402 U.S. 1, 28
(1971) ("When school authorities present a district court with a
'loaded game board,' affirmative action in the form of remedial
altering of attendance zones is proper to achieve truly
nondiscriminatory assignments.");  Bazemore v. Friday, No. 85-93 (July
1, 1986), slip op. 2-3 (White, J., for the Court).
   /5/ We note that, if a race-conscious promotion scheme could ever
be defended on "operational needs" grounds, that scheme would have to
be adopted in the first instance by the law enforcement agency itself,
as necessary in its view to the successful discharge of its
responsibilities.  Moreover, because the "operational needs" theory
seeks to justify race-conscious relief on grounds other than remedying
prior discrimination and its effects, we have serious doubts whether
that theory would ever authorize the imposition of a race-conscious
promotion quota.  Cf. Wygant, slip op. 7 (plurality opinion)
(rejecting role model theory since it "does not necessarily bear a
relationship to the harm caused by prior discriminatory hiring
practices");  id. at 5 (O'Connor, J., concurring) (same).
   /6/ Under the "rule of three," the Department considered "three
ranking eligibles" for a promotion, "and, if more than one vacancy
(was) to be filled, the name of one additional eligible for each
additional vacancy." Ala. Code Section 36-26-17 (1975), cited in Resp.
Br. 12 n.13.  Thus, if the Department sought to fill 15 vacancies, it
would consider the 17 highest-ranked candidates.  Although this of
course means that a highly-ranked candidate under the Department's
merit system has no absolute guarantee of promotion, that does not
make the disruptive effect of the promotion quota "diffuse." The
burden of a race-conscious layoff scheme would not be called "diffuse"
merely because the 15 white workers to be fired were chosen by lot
from a list of 17 names.
   /7/ Respondents cite Fullilove v. Klutznick, 448 U.S. 448, 508
(1980) (Powell, J., concurring), for the proposition that a district
court's remedial powers are somehow immune from the constitutional
limitations that would otherwise apply.  See Resp. Br. 27-28.  But
Justice Powell there cautioned that district courts must exercise
their remedial powers "within appropriate constitutional or statutory
limits" (ibid.).  One of the basic constitutional limits on racial
classifications is that they may not be used unless they are narrowly
tailored to accomplish a compelling governmental purpose.  This Court
has never suggested that racially discriminatory devices are merely
one of many options in a judge's remedial arsenal, to be employed or
not as he sees fit in a simple exercise of discretion.  If effective,
non-racial alternatives are available, racial discrimination is by
definition unnecessary and thus under strict scrutiny constitutionally
impermissible.  Indeed, this Court reaffirmed just last Term that the
same constitutional test applies to judicial action as to other state
action.  See Sheet Metal Workers, slip op. 50-51 (plurality opinion);
id. at 4 (Powell, J., concurring).  And the Chief Justice's opinion in
Fullilove stressed that the "limited remedial powers of a federal
court" are more constrained than those of Congress (448 U.S. at 480,
483).