                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

Nos. 02-4151 & 02-4241

ROBERT PETIT et al.,
                                            Plaintiffs-Appellants,
                                                 Cross-Appellees,
                                 v.


CITY OF CHICAGO, a municipal corporation, et al.,
                                            Defendants-Appellees,
                                                Cross-Appellants.
                          ____________
           Appeals from the United States District Court
       for the Northern District of Illinois, Eastern Division.
       Nos. 90 C 4984 & 91 C 668—William T. Hart, Judge.
                          ____________
ARGUED SEPTEMBER 10, 2003—DECIDED DECEMBER 15, 2003
                   ____________

  Before BAUER, MANION, and EVANS, Circuit Judges.
  EVANS, Circuit Judge. Eighteen years ago, the Chicago
Police Department (CPD) conducted an examination that
for a fairly brief moment in time formed the basis for
promotions of patrol officers to the rank of sergeant. After
the examination the raw scores were standardized, most
relevantly here for race and ethnicity. What followed was
this lawsuit alleging that promotions resulting from the
exam violated the plaintiffs’ rights under the Equal Protec-
2                                   Nos. 02-4151 & 02-4241

tion Clause of the United States Constitution. Today, odd as
it may seem, we must evaluate the hoary examination
based on the standards set out just this year by the United
States Supreme Court in two affirmative action cases
involving student admissions at the University of Michigan.
  This lawsuit itself stirred to life in 1988 when some of the
plaintiffs tried to intervene in another case—United States
v. City of Chicago (C.A. 73 C 2080, N.D. Ill.). When their
attempt was rejected, they filed this case in 1990. The
original plaintiffs were 326 nonminority Chicago police
officers who took the 1985-88 promotional examination for
the rank of sergeant. They alleged that the affirmative
action plan implemented in connection with that examina-
tion deprived them of the equal protection of the law. The
City defended the promotions based on the plan on the
grounds that (1) they were necessary to maintain the
operational effectiveness of the CPD; (2) they were neces-
sary to remedy past discrimination in hiring and promo-
tions; and (3) they were necessary to avoid a claim that the
City’s past policies were a violation of Title VII under an
“adverse impact” theory.
  The case was consolidated for discovery with five other
cases challenging various CPD promotions. Along the way,
all plaintiffs except 82 have been dismissed for lack of
standing. In addition, the doctrine of collateral estoppel has
been applied to preclude plaintiffs from relitigating certain
issues decided in Majeske v. City of Chicago, 218 F.3d 816
(7th Cir. 2000). Those issues were that, during the decades
prior to 1989, the City subjected African-American police
officers to unfavorable treatment in assignments, subjected
both African-American and Hispanic officers to unfavorable
treatment in hiring and to hostile treatment, and that the
CPD tolerated the hostile treatment. Ultimately the case
went to trial on issues of liability. The jury was asked to
make findings on 95 special interrogatories. It answered
five. The jurors found that each of the five times the City
Nos. 02-4151 & 02-4241                                      3

made promotions using the 1985-88 exam results, it had a
compelling interest in remedying the effects of past discrim-
ination against Hispanics. In February 2002, because the
jury did not reach a complete verdict, a mistrial was
declared.
  The parties then filed motions pursuant to Rule 50 of the
Federal Rules of Civil Procedure. Because not all issues
could be resolved through a decision on the Rule 50 mo-
tions, and because the City claimed that the plaintiffs had
not preserved certain issues raised in their Rule 50 motion,
the district judge considered the motions as “summary
judgment motions to the extent they raise issues not
properly preserved for a Rule 50 motion or rely on evidence
not presented at trial.” In other words, the entire record
was before the district judge when he granted summary
judgment for the City based on its claim that the police de-
partment had an operational need to engage in affirmative
action and that the action it took was narrowly tailored to
meet that need. Neither party has raised serious objections
to this rather unusual procedure, and our independent
evaluation reveals that the record contains undisputed facts
which allow a final disposition of this claim. In this appeal
the plaintiffs raise several issues, but only a few require
discussion.
   One issue we may quickly dispatch is whether a large
number of plaintiffs were properly dismissed. The first time
dismissal of these plaintiffs was requested, the request was
denied, but upon reconsideration, after Texas v. Lesage, 528
U.S. 18 (1999), dismissal was ordered of all but 82 plain-
tiffs.1 In Lesage, the Court held that dismissal of equal
protection claims brought by rejected applicants to a state
university doctoral program was proper because it was
undisputed that the applicants would have been rejected


1
    This is not a class action. All plaintiffs are named.
4                                    Nos. 02-4151 & 02-4241

regardless of any alleged discrimination. In that situation
there is “no cognizable injury warranting relief . . . .” At 21.
Similarly, the dismissed plaintiffs in this case would not
have been promoted regardless of any standardization of
test results and so have no cognizable injury. We find that
the dismissal was proper.
  The plaintiffs also argue that the collective bargaining
agreement (CBA) between the City and the Fraternal Order
of Police prohibits the affirmative action plan involved in
this case. The CBA says:
    [E]mployment related decisions will be based on quali-
    fications and predicted performance in a given position,
    without regard to race . . . sex . . . or national origin
    ....
This issue was raised for the first time at the close of
evidence at trial on a motion for directed verdict—that is,
about 12 years into the case. The district judge found that
the issue had not been properly preserved for purposes of
the Rule 50 motion, but because of the mistrial he allowed
the parties to raise issues—not otherwise waived or dis-
missed in pretrial proceedings—in summary judgment
motions or Rule 50 motions converted to summary judg-
ment motions.
  We will set aside consideration whether the controversy
must first be arbitrated as required by the CBA or whether
the contract excludes promotions to sergeant on the basis
that those positions are outside the bargaining unit because
there is a more compelling reason why the arguments fail.
As we shall soon see, the affirmative action promotions in
this case do not violate the Equal Protection Clause.
  We turn, then, to the dispositive issue: the City’s defense
that the procedures used met an operational need of the
police department. Like any racial preference, this one must
Nos. 02-4151 & 02-4241                                           5

be justified by a compelling state interest. Adarand Con-
structors, Inc. v. Pena, 515 U.S. at 227 (1995). In Grutter v.
Bollinger, 123 S. Ct. 2325 (2003), one of the University of
Michigan cases we alluded to at the beginning of this
opinion, the Court endorsed the view that “student body
diversity is a compelling state interest that can justify the
use of race in university admissions.” At 2337. In arriving
at that conclusion, the Court deferred to the law school’s
educational judgment that “such diversity is essential to its
educational mission . . . .” The goal of the law school was to
assemble a class that was “exceptionally academically
qualified and broadly diverse,” and as part of that goal it
sought to enroll a “critical mass” of minority students. At
2339. The Court found that the benefits of diversity were
substantial, for which proposition it relied in part on the
views of high-ranking retired officers and civilian leaders of
the United States military to the effect that a “highly
qualified, racially diverse officer corps . . . is essential to the
military’s ability to fulfill its principle mission to provide
national security.” At 2340. Furthermore, in the Court’s
words, the “[e]ffective participation by members of all racial
and ethnic groups in the civic life of our Nation is essential
if the dream of one Nation, indivisible, is to be realized.” At
2340-41. The conclusion was that the “Law School has a
compelling interest in attaining a diverse student body.” At
2339.
  It seems to us that there is an even more compelling need
for diversity in a large metropolitan police force charged
with protecting a racially and ethnically divided major
American city like Chicago. Under the Grutter standards,
we hold, the City of Chicago has set out a compelling
operational need for a diverse police department.
  In Grutter, the Court noted that its holding was in “keep-
ing with our tradition of giving a degree of deference to a
university’s academic decisions, within constitutionally
prescribed limits.” At 2339. Similarly, we believe that it
6                                   Nos. 02-4151 & 02-4241

is proper in this case to rely on the views of experts and
Chicago police executives that affirmative action was war-
ranted to enhance the operations of the CPD. In fact, prior
to Grutter we stated that we “left open a small window for
forms of discrimination that are supported by compelling
public safety concerns, such as affirmative action in the
staffing of police departments . . . .” Reynolds v. City of
Chicago, 296 F.3d 524, 530 (7th Cir. 2002).
  In this case, the City presented a strong basis to conclude
that some rather modest affirmative action promotions were
necessary for the effective operation of the police depart-
ment. Professor Samuel Walker, an expert in criminal
justice and police-community relations, testified that all
major studies conducted since the 1960’s recognized the
importance of minority representation. The reality of urban
policing is that minorities are frequently mistrustful of
police and are more willing than nonminorities to believe
that the police engage in misconduct. Walker also described
the results of a survey he conducted to measure the percep-
tions and attitudes of Chicago residents about minority
supervisors. He found that among Chicagoans,
nonminorities have more favorable opinions about the CPD
than do minorities. Distrust and a lack of confidence in the
police, in turn, reduce the willingness of some community
members to cooperate with the police. On the other hand,
when police officers are routinely supervised by minorities,
the fears that the police department is hostile to the
minority community will naturally abate. Walker’s conclu-
sion was that an increase in minorities enhanced the
public’s perception of the CPD, which in turn enhanced the
department’s ability to prevent and solve crime.
  A former chief of the Portland (Oregon) Police Bureau,
Tom Potter, testified to the necessity of diversity among
police supervisors, both for the community’s perceptions of
police departments, but also internally in changing the at-
Nos. 02-4151 & 02-4241                                      7

titudes of officers. Additionally, a number of high-ranking
CPD officials confirmed the need for diversity at the
sergeant rank and that sergeants are in a unique position
to influence officers on the street. These officials testified
that the presence of minority sergeants has not only im-
proved police-community cooperation, but also diffused
potentially explosive situations, such as the tense racial
situation following riots in the 1980’s in a predominately
Hispanic community. These officials also recounted the
growth in the minority population of the City and the fact
that minority representation at the sergeant rank had not
kept pace with that growth.
  We have previously recognized that a visible presence of
minorities in supervisory positions is critical to effective
policing in a racially diverse city like Chicago because
supervisors “set the tone for the department.” Equally
important, the presence of minority supervisors is an im-
portant means of earning the community’s trust: “Effective
police work, including the detection and apprehension of
criminals, requires that the police have the trust of the
community and they are more likely to have it if they have
‘ambassadors’ to the community of the same [race or]
ethnicity.” Reynolds, 296 F.3d at 529. In another case
involving promotions to sergeant, we found that “[t]he
composition and operation of an effective police force should
be in as complete harmony as possible with the community
from which it springs.” United States v. City of Chicago, 663
F.2d 1354, 1364 (7th Cir. 1981) (en banc).
  All in all, we find that, as did the University of Michigan,
the Chicago Police Department had a compelling interest in
diversity. Specifically, the CPD had a compelling interest in
a diverse population at the rank of sergeant in order to set
the proper tone in the department and to earn the trust of
the community, which in turn increases police effectiveness
in protecting the city.
8                                   Nos. 02-4151 & 02-4241

   This does not end our inquiry, however, for “[e]ven in the
limited circumstance when drawing racial distinctions is
permissible to further a compelling state interest, govern-
ment is still ‘constrained in how it may pursue that
end: [T]he means chosen to accomplish the [government’s]
asserted purpose must be specifically and narrowly framed
to accomplish that purpose.’ ” Grutter, 123 S. Ct. at 2341,
quoting Shaw v. Hunt, 517 U.S. 899, 908 (1996). It is here
that Grutter and the other University of Michigan
case—Gratz v. Bollinger, 123 S. Ct. 2411 (2003)—diverge.
The system for undergraduate admissions at issue in Gratz
was rejected because it was not narrowly tailored and, for
that reason, violated the Equal Protection Clause. The
method used by the university was automatically to assign
20 points—or one-fifth of the 100 points need to guarantee
admission—to each underrepresented minority applicant
solely because of race. The system, which made race the
deciding factor for every minimally qualified minority
applicant, was found not to be narrowly tailored. On the
other hand, the system at the Michigan Law School as
described in Grutter was constitutional. Rejecting “mechan-
ical, predetermined diversity ‘bonuses,’ ” the Court empha-
sized that race must be used in “a flexible, nonmechanical
way.” A race-conscious admissions program cannot use a
quota system. It cannot “insulat[e] each category of appli-
cants with certain desired qualifications from competition
with all other applicants.’ ” Grutter, 123 S. Ct. at 2343.
However, race can be a “ ‘plus’ factor in the context of
individualized consideration of each and every applicant.”
Id. at 2342. In addition, a program must not unduly harm
members of any racial group and must “work the least harm
possible to other innocent persons competing for the bene-
fit.” Id. at 2345, quoting Wygant v. Jackson Bd. of Educ.,
476 U.S. 267, 308 (1986). Finally, the program must be
limited in time; that is, not enshrined as a permanent
justification for racial preferences.
Nos. 02-4151 & 02-4241                                    9

  In the mid-1980’s, when the CPD determined that it
would make approximately 500 promotions of patrol officers
to the rank of sergeant, it formulated an examination
procedure, which any patrol officer was eligible to take and
anyone who sought a promotion had to take. The promo-
tions were to be made according to rank order of the scores.
A total of 3,416 officers took the examination— 2,274 white
officers (and in a somewhat bizarre move, Asians, American
Indians, and other smaller ethnic groups were thrown into
the white category); 931 African-Americans; and 192
persons classified as Hispanic.
  The examination consisted of four parts, with the follow-
ing weights: a written multiple choice test administered in
1985 (28%); a written short answer test administered in
1988 (29%); an oral examination also administered in 1988
(40%); and performance evaluations (3%). The points added
up to a total possible score of 100.
  As recounted by Robert T. Joyce of the City of Chicago
Department of Personnel, the results were evaluated by
employees of his department. For the subjective parts of the
test—the written short answers and the oral examination,
the City standardized the scores to eliminate differences
resulting from the differences in grading among the differ-
ent persons doing the grading. The results, after this
standardization, showed that the test had an adverse im-
pact on African-Americans and Hispanics and would have
resulted in far too few promotions to persons in those
categories. As we noted, there were 458 officers promoted.
Using these test results, only 60 would have been African-
American and only 15 would have been Hispanic.
  At the time the examination was being formulated, the
City had experience with two prior examinations for the
rank of sergeant and, more importantly, was under a
federal court order not to promote officers on rank-order
examinations unless it could document the test’s validity as
10                                  Nos. 02-4151 & 02-4241

a rank order promotional device. In other words, to use the
results as they stood, the City would have had to show that
a higher score would result in better performance as a
sergeant. But this test was not validated, and, in fact, the
City explains that it would be extremely difficult to validate
such a test. Furthermore, analysis showed that there was
a standard measure of error for the examination that was
greater than three points. That meant that a person taking
the test on two different days could be expected to receive
a score on one day that was within plus or minus three
points of the score on another day. In addition, on the 100-
point scale that was used to grade the examination, the
scores of a large number of candidates were too close to be
distinguished from one another. Finally, in examining the
process of developing the test, the City found that white and
African-American sergeants differed as to the relative
importance of various sergeant duties. Seventy percent of
the sergeants who participated in the job analysis were
white, so that the test was created from data that tended to
reflect the views of the white sergeants.
  For those reasons, through a rather complicated proce-
dure, the City standardized the scores based on race. As Mr.
Joyce explains it, standardization is a recognized statistical
method of removing differences between the scores of two or
more groups of test-takers. If, for instance, two different
groups have different mean scores, and there is no objective
reason to assume the two groups should have scored
differently, standardization is an acceptable method of
equalizing the scores. The process was an attempt to
produce results that reflected the score a candidate would
have received if the test had not had an adverse racial
impact. The standardized scores were then used to place the
candidates in rank order.
  Given the margin of error and the fact that the test was
not validated, these candidates, both before and after
Nos. 02-4151 & 02-4241                                    11

standardization, were fairly uniformly qualified for promo-
tion. In fact, according to the examination results, it would
appear that all of the candidates who were promoted, and
many who were not promoted were qualified for promotion.
The passing score on the examination was 70, and approxi-
mately 2000 of the candidates passed. The result of the
standardization was that, of the top 500 officers, 332 were
white, 138 were African-American, and 30 were Hispanic.
The score of the 332nd white candidate in the pool of 500
eligible candidates was 82.98; the unstandardized score of
the 138th African-American candidate was 80.70 and
the standardized score was 82.82; the unstandardized score
of the 30th Hispanic candidate was 80.95 and the standard-
ized score was 83.43. The differences are within the margin
of error. Based on the examination results, the City made
standardized rank-order promotions of 402 candidates—298
were white; 119 were African-American; and 41 were
Hispanic. In addition, 56 out-of-rank-order promotions were
made. It cannot be said that the process affected every
“minimally qualified” candidate as did the blanket award of
20 points per candidate, the procedure found to be unconsti-
tutional in Gratz. In fact, standardizing the scores can be
seen not as an arbitrary advantage given to the minority
officers, but rather as eliminating an advantage the white
officers had on the test.
  The ultimate result was that of the 82 plaintiffs to this
action, some had their promotions delayed and approxi-
mately 50 were not promoted. While we do not minimize the
loss that those who were not promoted suffered, we find
that the procedures met the Grutter standard for minimiz-
ing harm to members of any racial group.
  Furthermore, the results of this examination were not
used after 1991, and no race-conscious promotions have
been made since that time. We are told that, in fact, new
examinations have been held in 1993, 1998, and 2002. The
affirmative action plan at issue in this case was limited in
time, as Grutter also requires.
12                                  Nos. 02-4151 & 02-4241

  Faced with a very difficult situation, we find that the City
formulated a plan in the 1980’s which meets the standards
enunciated in 2003. The judgment of the district court is
AFFIRMED.

A true Copy:
  Teste:

                        ________________________________
                        Clerk of the United States Court of
                           Appeals for the Seventh Circuit




                   USCA-02-C-0072—12-15-03
