2006 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-18-2006

Lomack v. Newark

Precedential or Non-Precedential: Precedential

Docket No. 05-4126

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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

 
*

 The Honorable John R. Gibson, Senior Circuit Judge,

United States Court of Appeals for the Eighth Circuit, sitting by

designation. 

2

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
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

 

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
2

 Also in 1995, the Council retained Lesli Baskerville, an

attorney, “for the purpose of examining legal documents relating

4

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

 
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

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.)
involuntary transfers.

6

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, 543 U.S. 499, 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, 509 U.S. 630, 651 (1993)). The District Court found that

the policy satisfied both prongs of this test. We review the
7

District Court’s findings of fact for clear error. Contractors

Ass’n of Eastern Pa. v. City of Philadelphia, 91 F.3d 586, 596

(3d Cir. 1996). The existence of a compelling state interest,

however, is a question of law that is subject to plenary review. 

Id. 

III. ANALYSIS

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, 480 U.S. 149, 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., 488

U.S. 469, 492 (1989). “[R]ace-based preferences cannot be

justified by reference to past ‘societal’ discrimination in which

the municipality played no material role.” Contractors Ass’n, 91

F.3d at 596; see also Shaw v. Hunt, 517 U.S. 899, 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); Richmond,

488 U.S. at 511 (1989); Wygant v. Jackson Bd. of Educ., 476

U.S. 267, 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,
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., 426 F.3d 1162, 1196-97 (9th Cir. 2005) (Bea, J.,

dissenting); see also id. at 1198 (“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

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, 426 U.S. 229, 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, 413 U.S. 189, 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
Especially is this so in view of the U.S. Supreme Court’s

frequent pronouncements that ‘racial balancing’ violates the

Equal Protection Clause.” Id. at 1197, 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.’” 

Washington, 426 U.S. at 240 (quoting Keyes,, 413 U.S. at 205);

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

Education, 347 U.S. 483 (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, 539 U.S. 306 (2003), the Supreme

Court clarified that non-remedial goals may also justify racebased classifications in certain circumstances. Id. at 328 (“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
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. Id. at 330. The

Court agreed that it was essential for students to be exposed to

“widely diverse people, cultures, ideas, and viewpoints,” id., and

that 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,” id. at 332. 

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, 517 U.S. 899, 908

n.4 (1996) (internal quotation marks and citations omitted).

10

body are a sufficiently compelling interest to justify race-based

enhancements of minority students’ applications to law school.6

Id. at 328-33. 

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 jobperformance 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
11

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 Grutter, 539

U.S. at 327 (“Context matters when reviewing race-based

governmental action under the Equal Protection Clause.”). 

The “relevant difference,” id., between a 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. Id. at 331, 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
8

 Courts have found such “operational needs” arguments

to be persuasive in the law enforcement context. See, e.g., Petit

v. City of Chicago, 352 F.3d 1111, 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, 310 F.3d 43, 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

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 Ass’n, 310 F.3d at 52-

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, 193 F.3d
13

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. 

Id. at 1293.

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 singlerace fire companies and that issue of single-race companies

“never came up” before the “consent decree committee” on

which he served. (Id. at 308.) 
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

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, 539 U.S. 306, 330 (2003)

(explaining that “outright racial balancing . . . is patently

unconstitutional”); see also Freeman v. Pitts, 503 U.S. 467, 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. 
15