Could a Maryland court legally alternate hiring between Black and white applicants to make up for past discrimination in its workforce?

Plain-English summary

A judge of the Circuit Court for Baltimore City asked the Attorney General, in late 1989, whether the court's affirmative action hiring policy remained lawful. Adopted in 1976 by the court's predecessor, the Supreme Bench, the policy filled most courthouse vacancies alternately between qualified Black and qualified white applicants, a "one-black-for-one-white" hiring rule meant to increase minority representation among courthouse staff. After tracing a decade of Supreme Court affirmative action decisions culminating in the Court's 1989 Croson ruling, the Attorney General concluded that continuing the policy would violate the Equal Protection Clause. The 1976 record relied on general population and workforce statistics rather than evidence of identified discrimination against qualified applicants, and the alternating-hire rule was a rigid quota rather than a flexible, narrowly tailored remedy, one that had already run for more than a dozen years without a fixed endpoint.

Currency note

This opinion was issued in October 1989, applying the Equal Protection framework the Supreme Court had settled that January in City of Richmond v. J. A. Croson Co. to a hiring policy the Circuit Court for Baltimore City had followed since 1976. Affirmative action and equal protection doctrine governing public employment have continued to develop in the decades since 1989, and the opinion does not address whatever hiring practices the Circuit Court for Baltimore City or its Security Division may follow today. This page is a historical record of how the Attorney General analyzed one court's hiring policy against the case law available in 1989. It describes what the opinion concluded then and is not a statement of current Maryland court personnel practices or current equal protection doctrine. Verify current law directly before relying on anything here.

Common questions

Did Maryland's Attorney General say the Baltimore City circuit court's affirmative action hiring policy was unconstitutional?
Yes. The opinion concluded that continuing the court's one-black-for-one-white hiring policy would violate the Equal Protection Clause of the Fourteenth Amendment.

Why did the opinion think a policy meant to fix past discrimination was itself unconstitutional?
The opinion explained that the 1976 record supporting the policy relied on general population and workforce statistics, evidence of "societal discrimination," rather than evidence of identified discrimination against qualified minority applicants for courthouse jobs, and under the Supreme Court's Croson decision, societal discrimination alone cannot justify a race-conscious remedy.

Was the alternating one-black-one-white hiring rule treated as a flexible goal or a rigid quota?
The opinion treated it as a rigid quota. It found the policy left no discretion: a qualified Black applicant had to be hired on the "Black" turn regardless of a white applicant's qualifications, and vice versa, which the opinion said failed the narrow-tailoring requirement of the Croson-Wygant test.

Did the length of time the policy had been in place matter to the outcome?
Yes, it was one factor. The opinion noted the policy had already continued for more than a dozen years without a fixed end date tied to anything but broad population statistics, which weighed against treating it as the kind of temporary, flexible remedy the Supreme Court had approved in other cases.

Background and statutory framework

The one-black-for-one-white hiring policy traced back to a February 1976 report by the Supreme Bench of Baltimore City's Committee on Equal Employment Opportunity, which found that an earlier affirmative action plan had not increased Black employment enough relative to the city's population and recommended alternating hires by race until the courthouse workforce became more representative. The full bench adopted the policy in March 1976, covering most courthouse divisions but not judges' secretaries and law clerks. The General Assembly later transferred the Court House Security Division to the Sheriff's Office in 1976, Chapter 864, Laws of Maryland 1976, carrying forward a similar racial-alternation directive for that unit's hires. A 1980 law, Chapter 526, Laws of Maryland 1980, folded several courthouse units into a personnel merit system and provided that the Supreme Bench's affirmative action policy, as it existed and as later amended, would apply to that system, CJ §2-5A-07(a). In 1985, the Pre-Trial Release Services Division was transferred out of the court system, taking its employees out from under the 1976 policy, Chapter 725, Laws of Maryland 1985.

The opinion applied the two-part strict scrutiny test the Supreme Court had settled in City of Richmond v. J. A. Croson Co. earlier that year, building on Wygant v. Jackson Board of Education: whether the policy was justified by a compelling interest in remedying identified discrimination, and whether it was narrowly tailored to that end. On the first prong, the opinion found the 1976 committee had relied only on citywide population and workforce statistics, not evidence tied to the qualified applicant pool for specific courthouse jobs, which under Croson could not support a finding of identified discrimination; the opinion also noted that later, non-city workforce statistics would undercut the disparity even further. On the second prong, the opinion found the policy was a rigid quota rather than a flexible goal, since it mandated hiring by turn regardless of comparative qualifications and had already lasted more than a decade with no fixed end date apart from broad demographic benchmarks. The opinion also flagged, although not squarely asked, that the racial-alternation quota for the Security Division's own hires under Chapter 864 of the Laws of Maryland 1976 was likewise unconstitutional for the same reasons.

Citations and references

Statutes:

• Chapter 864, Laws of Maryland 1976, and Public Local Laws of Baltimore City §§22-6 through 22-11, transferring the Court House Security Division to the Sheriff's Office with its own racial-alternation hiring directive
• Chapter 526, Laws of Maryland 1980, consolidating courthouse clerical units into a personnel merit system
• CJ §2-5A-07(a), applying the Supreme Bench's affirmative action policy to that merit system
• Chapter 725, Laws of Maryland 1985, transferring the Pre-Trial Release Services Division out of the court system
• 42 U.S.C. §2000e et seq., Title VII of the Civil Rights Act of 1964

Cases:

• University of California Regents v. Bakke, 438 U.S. 265 (1978), the Supreme Court's first affirmative action decision, invalidating a rigid racial quota in medical school admissions
• United Steelworkers of America v. Weber, 443 U.S. 193 (1979), upholding a private employer's voluntary affirmative action plan under Title VII
• Fullilove v. Klutznick, 448 U.S. 448 (1980), upholding a federal minority business set-aside as a temporary, flexible remedy
• Firefighters Local Union 1784 v. Stotts, 467 U.S. 561 (1984), disapproving modification of a consent decree that would have laid off white firefighters
• Local 28 of Sheet Metal Workers v. EEOC, 478 U.S. 421 (1986), and Local Number 93 v. City of Cleveland, 478 U.S. 501 (1986), upholding race-conscious remedies for proven Title VII violations
• Wygant v. Jackson Board of Education, 476 U.S. 267 (1986), striking down a school board's race-conscious layoff protection for lacking a sufficient evidentiary basis
• J. A. Croson Co. v. City of Richmond, 478 U.S. 1016 (1986), and Janowiak v. Corporate City of South Bend, 481 U.S. 1001 (1987), cases remanded for reconsideration in light of Wygant
• Watson v. Fort Worth Bank and Trust, 487 U.S. 911, 977 (1988), cited for the proposition that preferential treatment and quotas by public employers can violate the Constitution
• Johnson v. Transportation Agency, Santa Clara County, Calif., 480 U.S. 616 (1987), upholding a gender-conscious promotion plan under Title VII without deciding its fate under the Equal Protection Clause
• United States v. Paradise, 480 U.S. 149 (1987), upholding a court-ordered one-black-for-one-white promotion requirement for Alabama state troopers as a temporary, flexible remedy for adjudicated discrimination
• City of Richmond v. J. A. Croson Co., 109 S.Ct. at 723-28 (1989), the decision finally settling the two-prong strict scrutiny test applied throughout this opinion
• Higgins v. City of Vallejo, 823 F.2d 351 (9th Cir. 1987), and Janowiak v. Corporate City of South Bend, 836 F.2d 1034 (7th Cir. 1987), lower court decisions reaching different results on race-conscious hiring and promotion plans
• City of South Bend v. Janowiak, 109 S.Ct. 1310 (1989), and Higgins v. City of Vallejo, 109 S.Ct. 1310 (1989), Supreme Court orders declining review of those lower court decisions
• Wards Cove Packing Co. v. Atonio, [109 S. Ct. 2115] (1989), a 1989 decision making it harder for some plaintiffs to prove a Title VII case with statistics alone

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1989/Volume74_1989.pdf (this opinion appears at printed pages 112-127 of the bound annual volume; Maryland's site does not publish a standalone PDF of this opinion)

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

Constitutional Law - Equal Protection - Affirmative Action - One-
Black-For-One-White Hiring Policy Of Circuit Court For
Baltimore City Is Unconstitutional

October 10, 1989

The Honorable Hilary D. Caplan
Circuit Court for Baltimore City

 You have requested our opinion on the constitutionality of the

affirmative action hiring policy for certain employees of the Circuit
Court for Baltimore City. Under this policy, which was adopted in
March 1976, vacancies are filled alternately by qualified minority
applicants and qualified white applicants.

On the basis of caselaw developed since the voluntary adoption of

the 1976 plan, it is our opinion that continuation of this hiring policy
would violate the Equal Protection Clause of the Fourteenth
Amendment to the United States Constitution.

                                I

                           Background

A. Origin of the Policy

 On February 25, 1976, the Supreme Bench of Baltimore City's

Committee on Equal Employment Opportunity ("CEEO"), composed
of five judges of that court, issued its report on affirmative action. The
report noted that, despite the adoption of an affirmative action plan for
court employees four years before, the number of blacks employed was
insufficient:

         [I]n the year 1973, for example, only 63 out of a
      possible 279 positions which are under the direct
      jurisdiction of the Supreme Bench were held by
      blacks; in the year 1974, only 60 out of 278 such
      positions were held by blacks ... [and] out of a
      possible 282 positions under the direct jurisdiction of
      the Supreme Bench of Baltimore City in the year
      1975, only 65 of such positions were held by blacks.

CEEO Report at 2-3. The Committee compared these figures with the
following statistics:

      The percentage of blacks making up the working
    age population of Baltimore City in the year 1975,
    however, was 43.1%. The prospects for the future
    indicate that that percentage will increase even more.
    Such a projection is based on the facts that 70% of
    the student population of Baltimore City Schools is
    black and that the current census figures indicate that
    the percentage of blacks making up the total
    population of Baltimore City is 53%.

CEEO Report at 3. Thus, the committee concluded that the existing
affirmative action plan "has not been seen to ameliorate effectively
prior discriminatory practices." Report at 6.

The committee posited as the goals of a new affirmative action

effort "to provide employment opportunities to persons who have in the
past been subjected, both overtly and covertly, to discrimination" and
"to achieve a work force which, at all levels, will be truly
representative of the work force of the community which it serves."
Report at 5. The committee stated that:

       The present situation mandates the immediate
    adoption of preferential hiring practices as specific
    temporary affirmative relief, the duration of which
    should be determined by the results of an annual
    review of the Court Administrator and a committee
    of judges regarding the degree to which such
    measures undertaken effectively offset the effects of
    past discrimination. When that has been determined
    to be the result, the preferential hiring relief can be
    terminated.

       In this regard, the Committee recommends that
     specific one-to-one preferential hiring relief be
     implemented temporarily until the makeup of
     Supreme Bench personnel is more representative, in
     terms of minorities, of the area which it serves.

Report at 6 (emphasis in original). The committee added that:

         This temporary policy of preferential hiring within
      the Supreme Bench on a one-to-one basis should
      continue until the vestiges of past discrimination
      against minorities has been eradicated.

         Beginning as soon as is practicable, new vacancies
      on the Supreme Bench should be filled on a one-to-
      one basis, i.e., alternately, positions should be filled
      by a qualified racial minority applicant and next by
      a qualified white applicant, due regard being given in
      either instance for the employment of female
      applicants.

Id. at 7-12 (emphasis in original). The new hiring policy was approved
by the entire bench on March 4, 1976, to become effective March 15,
1976. It applied to the Administrative Office, the Civil Assignment
Office, the Criminal Assignment Office, the Court Reporters, the
Pretrial Release Division, the Masters and staff and the Security
Division, but not to the judges' secretaries and law clerks.

B. Statutory Changes

 Although originally subject to the Supreme Bench Affirmative

Action Plan, the Court House Security Division was transferred by
statute to the Sheriffs Office in July 1976. Chapter 864, Laws of
Maryland 1976. See also Public Local Laws of Baltimore City §§22-6
through 22-11. That law expressly provided, however, that:

         [I]n making new appointments to the staff of the
      Division of Court House Security the Sheriff shall be
      guided by the general concept that the black and
      white races should be represented on the staff of the
      Division in approximately the same proportion as
      they exist in the general adult population of the City;
      until these proportions are attained the Sheriff shall
      be guided by the general policy that new
      appointments be alternated between black and white
      employees.

Chapter 864, at Section 3.

In 1980, a more far-reaching change was initiated. Contingent

upon voter approval in 1982 of a constitutional amendment
transforming the Supreme Bench into the Circuit Court for Baltimore
City, legislation consolidated the clerk's offices, and established a
personnel merit system for various units of the old Supreme Bench,
including the civil assignment commissioner's office, the jury
commissioner's office, the criminal assignment commissioner's office,
the domestic relations division, the juvenile court clerk's office and the
pre-trial release services division. See Chapter 526, Laws of Maryland
1980, codified as Subtitle 5A of Title 2 of the Courts Article ("CJ"
Article). This legislation also provided that:

        The Supreme Bench affirmative action policy that
     is in effect on January 1, 1983, and as amended from
     time to time by the judges of the Circuit Court for
     Baltimore City, shall apply to the personnel system.

CJ §2-5A-07(a).

In 1985, the General Assembly transferred the Pre-Trial Release

Services Division to the Department of Public Safety and Correctional
Services. Chapter 725, Laws of Maryland 1985. Thus, persons hired
into this unit were no longer subject to the 1976 hiring policy.

C. Program Review and Progress

The CEEO Report called for the annual review of the one-black-

for-one-white hiring policy by a committee of judges and the Court
Administrator. As a result, the Equal Employment Committee was
established. It is our understanding that this committee, which was
merged into the Budget and Personnel Committee in 1988, has met
annually and has voted to continue the hiring policy.

The last comprehensive study of the impact of the hiring plan

occurred in April 1979. In a written report entitled "Affirmative
Action Under the Supreme Bench of Baltimore City 1975-1978",
Associate Judge Joseph C. Howard, Sr., observed that the hiring policy
had not achieved a reasonable increase in minority employment
representation, primarily because there were "an almost equal number
of minority employees terminated as were hired." 1979 Report at 21.
However, the report also noted a net gain of five black employees:

         [D]uring the last nine months of 1976, in which
      the Affirmative Action Plan was in operation,
      minorities received 15 of the 34 job opportunities or
      44%. Again in 1977 six of the 13 available jobs
      (45%) were awarded nonwhites. Finally, in the most
      recent year studied, a majority of the new positions
      (8 out of 14 or 57%) went to nonwhites.

        Viewing these data from another perspective, in
      1975 minorities comprised 26% of the entire
      employment population but received an average of
      almost 50% of the job opportunities over the three
      succeeding years.1

Report at 9. The Report concluded that the affirmative action plan
"was definitely needed; has shown increasing results as it was given
time to succeed; but must be continued over time before its ultimate
goals will be reached." 1979 Report at 22.2

Recent statistics on the racial composition of the courthouse

workforce show a definite increase over these earlier figures. Of the
293 employees in the Clerk's Office, 161 or 55 percent are minority
and 132 or 45 percent are non-minority. Of the 109 employees in the

 1
  The 1979 Report stated that of the 223 court employees in 1975, 58 or 26%

were black; and of the 211 employees in 1978, 63 or 30% were black. Id. at 6.
2
The report noted that the plan would not be successful "until the overall
representation reaches its goal of reflecting the community which we serve." 1979
Report at 19.

Administrative Office, 57 or 52.3 percent are black and 52 or 47.7
percent are white.3

                                II

                          Relevant Caselaw

 The United States Supreme Court did not decide its first reverse

discrimination/affirmative action case until 1978 - some two years after
adoption of the Supreme Bench hiring policy. In University of
California Regents v. Bakke, 438 U.S. 265 (1978), the Court
invalidated a 16 percent racial quota, which reserved seats at a state
medical school for certain minority groups. Bakke contained a number
of elements that were to become hallmarks of affirmative action
decisions for the next decade: (1) a conclusion that some form of
affirmative action by a government entity was constitutionally
permissible; (2) a dichotomy between rigid racial "quotas," which were
generally proscribed, and flexible "goals," which were not; (3) a
concern for whether the same standard governed affirmative action
under the 1964 Federal Civil Rights Act and under the Equal Protection
Clause; (4) sharp divisions among the justices that prevented any
opinion from being the "opinion of the Court"; and (5) little
predictability about what the Court would uphold.4

In United Steelworkers of America v. Weber, 443 U.S. 193 (1979),

the Court upheld the validity under Title VII of the 1964 Civil Rights
Act, 42 U.S.C. §2000e et seq., of a voluntary affirmative action plan

 3
     According to 1980 Census figures, 55.4 percent of the population of Baltimore

City is black, while 44.6 percent is white. For the Baltimore Standard Metropolitan
Statistical Area ("SMSA"), the population was 25.9 percent black and 74.1 percent
white. The employee work force (age 16 or older) in the City was 50.7 percent black
and 49.2 percent white (25.1 percent-74.9 percent in the Baltimore SMSA). With
respect to the potential work force (age 16 or older) in the City, 51.75 percent is
black and 48.25 percent is white (27.7 percent and 72.3 percent in the Baltimore
SMSA). See generally 1980 Census of Population: General Social and Economic
Characteristics - MD (1983). A recent Census Bureau study of 1985 population
statistics shows that Baltimore City is 57.4 percent black and the Baltimore SMSA 26
percent. Baltimore Sun, June 21, 1989, at Al. The relevance of these statistics will
be discussed below.
4
Other important features of the Court's affirmative action decisions over the
last decade were the differing treatment of voluntary and court-ordered affirmative
action and of public and private entities.

adopted by a private employer. Under the plan, 50 percent of new
trainees were to be black until the percentage of black skilled
craftworkers at the workplace approximated the percentage of blacks
in the local labor force. In Weber, the majority of the Supreme Court
said that the affirmative action plan was permissible under Title VII
because it was designed "to eliminate manifest racial imbalance in
traditionally segregated job categories," 443 U.S. at 197, and was a
temporary measure "not intended to maintain racial balance." 443
U.S. at 208.5

 The next year, in Fullilove v. Klutznick, 448 U.S. 448 (1980) the

Supreme Court upheld against a facial constitutional challenge a federal
minority business enterprise ("MBE") law that required local
governments receiving funds under a federal public works program to
use 10 percent of the funds for procurements from minorities. The plan
at issue in Fullilove was characterized as a temporary "pilot program,"
448 U.S. at 481-82, within a "flexible" administrative scheme, 448
U.S. at 487-89, justified by the evidence before Congress of private
discrimination. Thus, it was permissible as "a limited and properly
tailored remedy to cure the effects of prior discrimination." 448 U.S.
at 484.6

In 1984, the Court disapproved modification of a consent decree

entered in a Title VII case against the Memphis Fire Department that
would have resulted in the layoff of white firefighters. See Firefighters
Local Union 1784 v. Stotts, 467 U.S. 561 (1984). Initially, some
viewed this decision as presaging the end of affirmative action. See
Schwartz, The 1986 and 1987 Affirmative Action Cases: It's All Over
but the Shouting, 86 Mich. L. Rev. 524, 525 (1987). Subsequent
cases, however, appeared to confine Stotts to its facts. See Tribe,
American Constitutional Law 1534-35 n. 61 (1988).

  5
   The employer's adoption of the plan at issue in Weber had been prompted by

the fact that only five of 273, or 1.83 percent of skilled craftworkers at the place
were black, even though the workforce in the area was approximately 39 percent
black. 443 U.S. at 198-99.
6
As in Bakke, no single rationale commanded a majority.

 In 1986, the Court rendered two major affirmative action

decisions.7 Local 28 of Sheet Metal Workers v. EEOC, 478 U.S. 421
(1986), involved a union found to have violated Title VII by
intentionally discriminating against blacks and ordered by a federal
district court to comply with a 29 percent non-white membership goal.
A divided Supreme Court, in a plurality decision, upheld this race-
conscious remedy as a temporary, flexible goal designed to end
"pervasive and egregious racial discrimination." 478 U.S. at 476. The
Court noted, however, that such relief should not be routinely ordered.
478 U.S. at 479.8

 In Wygant v. Jackson Board of Education, 476 U.S. 267 (1986),

the Court wrestled with the constitutionality of a voluntary race-
conscious affirmative action plan established by a governmental entity
and struck down the plan. In Wygant, white employees of the Jackson
County School Board challenged the constitutionality of a collective
bargaining agreement extending preferential protection against layoffs
to minority employees. Although the Court upheld their claim, once
again five justices could not agree upon a rationale. Four justices
(Powell, Burger, Rehnquist and O'Connor) said that any racial
distinction must be justified by a compelling governmental interest and
that the measure chosen by the state to effectuate its purpose must be
narrowly tailored to the achievement of that goal. 476 U.S. at 274.
These justices went on to state that, before a governmental agency
embarks on an affirmative action program, it must ensure that it has
convincing evidence that remedial action is warranted and sufficient
evidence to justify the conclusion that there has been prior

 7
   In a minor decision, Local Number 93 v. City of Cleveland, 478 U.S. 501

(1986), a majority of the Court, distinguishing Stotts as involving court modification
of a decree, found that Title VII did not prevent the entry of a consent decree
providing for certain forms of race-conscious relief. However, the Court declined to
reach the issue of how such relief would fare under the Fourteenth Amendment. 478
U.S. at 517 n.8.
8
In Sheet Metal Workers, the justices said that:
[T]he [trial] court should exercise its discretion with an eye towards
Congress' concern that race conscious affirmative measures not be invoked
simply to create a racially balanced work force.... [A] court should
consider whether affirmative action is necessary to remedy past discrimina-
tion in a particular case before imposing such measures, and that the court
should also take care to tailor its orders to fit the nature of the violation it
seeks to correct.
478 U.S. at 475-76.

discrimination. 476 U.S. at 277. They said that the Jackson Board of
Education had not made such a determination, noting that "[s]ocietal
discrimination without more is too amorphous a basis for imposing a
racially classified remedy." 476 U.S. at 276. Three of these justices
(Powell, Burger, and Rehnquist) said that the layoff preference was not
"narrowly tailored", because the actual burden shouldered by non-
minorities laid off was "too intrusive." 476 U.S. at 283. In their
view, "alternate remedies," such as hiring "goals," diffused to a greater
extent among society "the burden to be borne by innocent individuals."
476 U.S. at 282. Justice O'Connor also specially concurred,
concluding that the voluntary race-conscious remedy was not narrowly
tailored because the layoff preference had no relationship to the
availability of minorities in the relevant labor pool. 476 U.S. at 294.9

 Thereafter, the Court remanded governmental affirmative action

cases for reconsideration in light of Wygant. See, e.g., J. A. Croson
Co. v. City of Richmond, 478 U.S. 1016 (1986) (minority set-asides in
public contracts); Janowiak v. Corporate City of South Bend, 481 U.S.
1001 (1987) (public employer hiring preference). As late as 1988, the
Court cited Wygant for the broad proposition that "[p]referential
treatment and the use of quotas by public employers subject to Title
VII can violate the Constitution," Watson v. Fort Worth Bank and
Trust, 487 U.S. 911, 977 (1988). Nevertheless, it remained possible
to incorrectly view the decision as merely a "layoff" case without
lasting relevance to other areas of affirmative action - particularly in
light of the Court's 1987 decisions.

In Johnson v. Transportation Agency, Santa Clara County, Calif,

480 U.S. 616 (1987), six justices - five joining in a single opinion -
voted to reject a male employee's claim that by passing over him for

 9
  Justice O'Connor also noted that public employers were not without a reliable

benchmark to determine prior discrimination justifying affirmative action:
[D]emonstrable evidence of a disparity between the percentage of
qualified blacks on a school's teaching staff and the percentage of qualified
minorities in the relevant labor pool sufficient to support a prima facie
Title VII pattern or practice claim by minority teachers would lend a
compelling basis for a competent authority such as the School Board to
conclude that implementation of a voluntary affirmative action plan is
appropriate to remedy apparent prior employment discrimination.
476 U.S. at 292.

promotion in favor of a female pursuant to an affirmative action plan,
his public employer violated Title VII of the Civil Rights Act.
Rejecting the concurring opinion of Justice O'Connor that Title VII and
the Fourteenth Amendment should be read in tandem to require a
statistical disparity sufficient to support a prima facie Title VII claim
to justify the voluntary affirmative action plan, the majority felt that
under Title VII all that was needed was a "manifest imbalance" that
reflected underrepresentation of women in traditionally segregated job
categories. 480 U.S. at 632.10 However, because the issue had not
been raised, the Court expressly declined to decide how the plan at
issue would have fared under the Equal Protection Clause. 480 U.S.
at 620, n. 2.

 In United States v. Paradise, 480 U.S. 149 (1987), five justices

upheld the constitutionality of a court-ordered one-black-for-one-white
promotion requirement as an interim measure for Alabama state trooper
promotions. However, only three justices joined in Justice Brennan's
opinion, which emphasized that the challenged requirement was
"effective, temporary and flexible," 480 U.S. at 185 - "flexible" in that
it could be "waived if no qualified black candidates [were] available."
480 U.S. at 177. In the plurality's view, it was a necessary remedy
for court-adjudicated, longstanding discrimination. Also relevant to the
outcome of the case was the fact that the term of the promotion "goal"
was contingent upon the state's own conduct. That is, the requirement
lasted only until the public employer came up with a promotion
procedure that did not have a discriminatory impact on blacks.11

 The Court's 1987 decisions led some commentators to conclude

that the constitutional basis for farreaching race-conscious affirmative
action was firmly established. See Schwartz, The 1986 and 1987
Affirmative Action Cases: It's All Over but the Shouting, 86 Mich. L.
Rev. 524 (1987). However, in the case of voluntary affirmative action
by governmental entities, this reliance was misplaced.

 10
      Justice O'Connor would have found a prima facie Title VII violation in the

fact that none of the county's 238 skilled craft jobs was occupied by a woman, despite
the fact that women constituted five percent of the local labor pool of skilled workers.
480 U.S. at 656.
11
In fact, the one-for-one requirement affected only eight black troopers and
was quickly suspended by the court. 480 U.S. at 185-89 (concurring opinion of
Justice Powell). Despite this fact and a significant record of 12 years of
governmental discrimination, four justices dissented.

 In January of 1989, in City of Richmond v. J. A. Croson Co., 109

S.Ct. (1989), a majority of justices struck down Richmond's 30 percent
minority set-aside for city construction work, and finally agreed upon
a standard to gauge the constitutionality of race-conscious affirmative
action by state and local entities.12 Writing for the majority and
relying upon Wygant, Justice O'Connor said that a race-conscious
remedy disadvantaging whites had to serve a compelling state interest,
such as remedying the present effects of "identified" discrimination,
and the remedy had to be narrowly tailored to the achievement of that
goal. 109 S.Ct. at 723-28.

 In discussing the first prong of this test, Justice O'Connor noted

that the evidence relied upon by the Richmond City Council to adopt
the set-aside did not rise to the level of a prima facie violation of Title
VII. 109 S.Ct. at 724. Specifically, she noted that evidence of
societal discrimination was insufficient, as was statistical evidence of
the low number of minorities receiving city contracts as compared to
Richmond's 50 percent black population. Id.13

 Turning to the second prong of the constitutional standard, Justice

O'Connor found that the Richmond plan was not narrowly tailored.
Calling the set-aside a "rigid, numerical quota" and an "absolute
preference ... based solely on race," adopted without any consideration
of race-neutral means to increase minority participation, she said "[w]e

  12
   By the time Croson was argued and decided, Justice Powell, a moderate on

affirmative action, had been replaced by Justice Kennedy.
13
The Justice stated that:
In the employment context, we have recognized that for certain entry
level positions or positions requiring minimal training, statistical
comparisons of the racial composition of an employer's workforce to the
racial composition of the relevant population may be probative of a pattern
of discrimination.... But where special qualifications are necessary, the
relevant statistical pool for purposes of demonstrating discriminatory
exclusion must be the number of minorities qualified to undertake the
particular task.
109 S. Ct. at 725. Subsequent to the Croson decision, the Court made it more
difficult for some plaintiffs to use statistics to make out a prima facie case of Title VII
discrimination. In Wards Cove Packing Co. v. Atonio, U.S. [109 S. Ct.
2115] (1989), the Court said that a comparison between the high percentage of
nonwhite workers in one employment category and a low percentage of such workers
in another was insufficient to establish a prima facie case.

think it obvious that such a program is not narrowly tailored to remedy
the effects of past discrimination." 109 S.Ct. at 728-29.14

In dissent, Justices Marshall, Brennan and Blackmun emphasized

the breadth of the Court's ruling: "Today for the first time, a majority
of this Court has adopted strict scrutiny as its standard of Equal
Protection review of race-conscious remedial measures." 109 S.Ct. at

752. And just a month after Croson was decided, the Court declined
     to review two affirmative action/reverse discrimination cases that
     applied this rigorous test of constitutional analysis. See City of South
     Bend v. Janowiak, 109 S.Ct. 1310 (1989) (mem.) and Higgins v. City
     of Vallejo, 109 S.Ct. 1310 (1989) (mem.).15

     With these decisions in mind, we turn to a constitutional analysis
     of the circuit court's hiring policy.16

     14 For a more detailed analysis of Croson, see 74 Opinions of the Attorney
     General 76 (1989).
     15
     In Higgins, the Ninth Circuit rejected a constitutional attack by a top-ranked
     white candidate for promotion to firefighter-engineer who was rejected in favor of the
     third-ranked black, pursuant to an affirmative action plan. Under civil service rules,
     the city was free to choose among the top three candidates. Moreover, there was
     statistical and other evidence that the city had engaged in past discrimination. And
     the promotion plan was deemed narrowly tailored because it was just a "guideline"
     that treated race as a "plus" for an employee rather than a mandate. Higgins v. City
     of Vallejo, 823 F.2d 351 (9th Cir. 1987). In Janowiak, the Seventh Circuit struck
     down a race-conscious hiring plan that was premised solely upon a city finding that
     a disparity existed between the percentage of minorities in the city's population and
     the percentage of minorities in police and fire departments. Janowiak v. Corporate
     City of South Bend, 836 F.2d 1034 (7th Cir. 1987).
     16
     Arguably, it may be possible to avoid the constitutional issue here by declaring
     the policy's stated contingency successfully satisfied. That is, the court is now "more
     representative, in terms of minorities, of the area in which it serves" and that "the
     vestiges of past discrimination against minorities has been eradicated." However,
     such a determination is for the bench to make, not the Attorney General. In addition,
     given the emphasis of the CEEO Report (and update) on city population and
     workforce statistics, it is not clear that the present employee breakdown by race
     would equal or exceed census statistics, which by 1990 will likely show the City with
     a greater black population and more blacks in the workforce. See note 3 above.
     Finally, the General Assembly by statute has in essence endorsed the hiring policy.
     See CJ §2-5A-07(a). Hence, it would be difficult for the court to unilaterally end it,
     were it not for the constitutional compulsion to do so.

                                III
     
                             Analysis
     

     The one-black-for-one-white hiring policy for circuit court
     employees is a race-conscious remedy voluntarily adopted by a State
     employer. Thus, whether it is properly characterized as a "quota" or
     a "goal," its constitutionality must be gauged by the two-pronged test
     set forth in Croson and Wygant, rather than by the Title VII standards
     of Weber, Local 28 of Sheet Metal Workers and Johnson, or those
     governing court-fashioned remedies in cases of longstanding
     discrimination, such as in Paradise. Therefore, we must determine (1)
     whether the policy is justified as a remedy for identified discrimination
     or by another compelling reason, and (2) whether it is narrowly
     tailored to remedy the effects of past discrimination.

A. Past Discrimination

 It would be naive to suggest that racial discrimination never existed

in Baltimore City or that the courthouse was immune from the effects
of that discrimination.17 Nevertheless, under Supreme Court
decisions, "societal discrimination" will not justify race-conscious
affirmative action.

The 1976 CEEO Report identified no specific acts of discrimination

with respect to courthouse personnel or judicial or administrative
findings of past discrimination. Instead, it relied upon statistics
showing blacks holding some 23 percent of the jobs as opposed to
comprising 53 percent of the City's general population and 43.1
percent of the City's working age population. Regardless of whether
such statistics could demonstrate a "manifest imbalance" for Title VII
purposes under Johnson v. Transportation Agency, they do not appear
to constitute a prima facie violation of Title VII for Equal Protection
purposes under City of Richmond v. J. A. Croson Co.

Even if these statistics continued to show a disparity down to the

present day, they suffer from a number of inherent problems. First,

 17 It was not until two decades ago that the Supreme Bench had its first black

judge and court clerk.

courthouse positions are not homogeneous. Jobs covered by the hiring
policy include masters (who must be lawyers), professionals, adminis-
trators, clerical workers, and skilled craft workers. While some of
these positions may require minimal training, thus permitting resort to
general workforce statistics, others clearly require special
qualifications. In the latter case, the relevant statistical pool must be
the number of minorities qualified to hold the position in question.
Croson, 109 S.Ct. at 725. Second, "potential work force" statistics
include 16- and 17-year-olds, persons without high school diplomas,
and others who might not meet basic qualifications for courthouse
employment. Third, because there is no across-the-board residency
requirement for courthouse employment, it is not clear whether the
relevant workforce statistics should be derived from the City alone or
from the entire Baltimore SMSA.18 If the latter figures are used,
continuance of the one-black-for one-white hiring policy clearly would
not be warranted on the basis of statistical disparities.19

 In short, in light of current Supreme Court standards, neither the

statistics assembled when the hiring policy was begun nor the present
statistics would demonstrate a prima facie case of discrimination
justifying a race-conscious remedy.20

 18 The Baltimore City Charter, Article IV, §6A requires City residency of "board

chairmen and all commission heads," and the City has a residence preference for its
civil service employees. Nevertheless, State law does not mandate City residency for
court employees.
19
See note 3 above.
20 Although remedying identified discrimination would have been a "compelling"
rationale for the hiring policy, we do not believe that Supreme Court decisions would
recognize as sufficiently compelling the goal of representing the area "served" by the
court. Litigants from all over the State use courthouse services in Baltimore City, not
just City residents in proportion to black-white population ratios.

B. Narrow Tailoring

 The most serious constitutional defect of the hiring policy is its

failure to meet the second prong of the Croson-Wygant test. It is not
a narrowly tailored remedy. In fact, it is an inflexible hiring quota.21

 When it is a qualified black's turn to be hired, the policy mandates

the hiring of a qualified black applicant regardless of the perhaps
superior qualifications of a particular white applicant; when it is a
white's turn to be hired, the policy prevents a qualified black from
applying for or filling the post. And, although the 1976 CEEO Report
describes the hiring plan as a "temporary" remedy, it has already
extended more than a dozen years, and its termination hinges on the
achievement of percentages keyed to amorphous workforce/population
statistics. In United States v. Paradise, a bare majority of the Supreme
Court upheld a court-ordered one-black-for-one-white promotion "goal"
described as "ephemeral." 480 U.S. at 178. We are convinced that
the Court would not uphold the 12-year-old hiring quota at issue here.

 21
    In his concurring opinion in Sheet Metal Workers, Justice Powell described the

distinction between "goals" and "quotas" articulated by the EEOC and the
Departments of Justice and Labor:
In the view of these federal agencies, which are charged with
responsibility for enforcing equal employment opportunity laws, a quota
would impose a fixed number or percentage which must be attained, or
which cannot be exceeded, and would do so regardless of the number of
potential applicants who meet necessary qualifications.... By contrast, a
goal is a numerical objective, fixed realistically in terms of the number of
vacancies expected, and the number of qualified applicants available in the
relevant job market.... An employer's failure to meet a goal despite good
faith efforts "is not subject to sanction, because [the employer] is not
expected to displace existing employees or to hire unneeded employees to
meet [the] goal."
106 S.Ct. at 3060-61.

                                IV

                           Conclusion

For all of these reasons, it is our opinion that continuance of the

one-black-for-one-white hiring policy of the Circuit Court for Baltimore
City would violate the Equal Protection Clause of the Fourteenth
Amendment.22

 22
    Although the issue is not specifically raised by your opinion request, we also

believe the racial quota for courthouse Security Division employees mandated by
Chapter 864 of the Laws of Maryland 1976 is likewise unconstitutional.

                                                 J. Joseph Curran, Jr.
                                                 Attorney General

                                                 Robert A. Zamoch
                                                 Assistant Attorney General

Jack Schwartz
Chief Counsel
Opinions and Advice