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

Nos. 00-3771 and 00-3768
WILLIAM R. REYNOLDS, et al.,
                                                Plaintiffs-Appellants,
                                 and


HAROLD DENNIS,
                                            Plaintiff/Cross-Appellee,
                                  v.

CITY OF CHICAGO,
                                                 Defendant-Appellee/
                                                    Cross-Appellant.
                          ____________
            Appeals from the United States District Court
        for the Northern District of Illinois, Eastern Division.
             No. 90 C 5456—George W. Lindberg, Judge.
                          ____________
      ARGUED JANUARY 8, 2002—DECIDED JUNE 21, 2002
                          ____________


  Before POSNER, COFFEY, and DIANE P. WOOD, Circuit
Judges.
  POSNER, Circuit Judge. This suit by white Chicago police
sergeants and lieutenants challenges, as a denial of equal
protection of the laws, the promotion in 1990 and 1991 of
20 black, Hispanic, and female sergeants and lieutenants to
2                                        Nos. 00-3771, 00-3768

the rank of lieutenant and captain respectively. The chal-
lenged promotions were made pursuant to an affirmative
action plan by which blacks, Hispanics, and women could
be promoted “out of rank,” that is, promoted even though
they had a lower score than a white male on the test for the
promotion. The district judge entered judgment after a jury
trial and a partial retrial that he ordered, as he was autho-
rized by Fed. R. Civ. P. 49(b) to do by an inconsistency be-
tween two of the answers that the jury gave to the special
interrogatories that it had been told to answer. See, e.g.,
Turyna v. Martam Construction Co., 83 F.3d 178, 181 (7th Cir.
1996); King v. Ford Motor Co., 209 F.3d 886, 895 (6th Cir.
2000); Austin v. Paramount Parks, Inc., 195 F.3d 715, 725 (4th
Cir. 1999). The judgment was for the City with respect to
all the promotions except that of the one Hispanic in the
pool, who was promoted from sergeant to lieutenant. The
plaintiffs appeal the ruling that the promotions of the
blacks and women ahead of them did not deny the equal
protection of the laws, while the City appeals the ruling
that the promotion of the Hispanic sergeant ahead of the
plaintiff sergeants was a denial of equal protection.
  An initial question is the standard of review of jury find-
ings in a racial-discrimination case. Although the plaintiffs’
position is unclear, it appears to be that we should review
the findings de novo, which would amount to making our
own findings on the basis of the evidence. The plaintiffs
derive this position from judicial statements that to justify
racial discrimination the defendant must have “a strong
basis in evidence” for it. E.g., Miller v. Johnson, 515 U.S. 900,
922 (1995); Johnson v. Board of Regents, 263 F.3d 1234, 1244
(11th Cir. 2001). The plaintiffs have wrenched this language
out of context. Racial discrimination even of the “affirma-
tive action” sort, when practiced by a public agency and
thus subject to the equal protection clause, requires proof,
Nos. 00-3771, 00-3768                                         3

and not merely argument, that the agency had a compel-
ling need to discriminate and that it went no further in dis-
crimination than necessary to meet that need. E.g., Mc-
Namara v. City of Chicago, 138 F.3d 1219, 1222 (7th Cir.
1998); Wittmer v. Peters, 87 F.3d 916, 918-19 (7th Cir. 1996);
Associated General Contractors of Ohio, Inc. v. Drabik, 214 F.3d
730, 735 (6th Cir. 2000). Argument in so sensitive an area
of human relations must not, the courts believe, be allowed
to draw on “common sense,” which might be inflected by
stereotypes. See Danskine v. Miami Dade Fire Dep’t, 253 F.3d
1288, 1294-95 (11th Cir. 2001); Contractors Ass’n of Eastern
Pennsylvania, Inc. v. City of Philadelphia, 91 F.3d 586, 597 (3d
Cir. 1996); Hayes v. North State Law Enforcement Officers
Ass’n, 10 F.3d 207, 214 (4th Cir. 1993). But the requirement
that there be proof and not merely conjecture to justify
racial discrimination even of the relatively benign, non-
stigmatizing sort, and the allocation of factfinding respon-
sibilities between trial and appellate court, are two differ-
ent things. The jury in a discrimination case has the same
responsibility to resolve factual disputes that it has in any
other case, subject to the same standard of review. Worth v.
Tyer, 276 F.3d 249, 266 (7th Cir. 2001); Susan Wakeen Doll Co.
v. Ashton Drake Galleries, 272 F.3d 441, 451 (7th Cir. 2001);
All Care Nursing Service, Inc. v. High Tech Staffing Services,
Inc., 135 F.3d 740, 749 (11th Cir. 1998); Tamez v. City of San
Marcos, 118 F.3d 1085, 1094 (5th Cir. 1997); United States v.
Tolliver, 116 F.3d 120, 125 (5th Cir. 1997).
  But what is that standard? The cases we just cited all use
the clearly-erroneous standard to review jury findings, yet
other cases say that in a federal civil case, by virtue of the
Seventh Amendment, reviewing courts owe more defer-
ence to a jury’s findings than to findings by a judge. See,
e.g., District of Columbia v. Pace, 320 U.S. 698, 701 (1944);
Artis v. Hitachi Zosen Clearing, Inc., 967 F.2d 1132, 1139 (7th
4                                       Nos. 00-3771, 00-3768

Cir. 1992); Richardson v. Suzuki Motor Co., 868 F.2d 1226,
1235 (Fed. Cir. 1989). The standard of appellate review ap-
plicable to judge and jury findings is at least verbally dif-
ferent: a judge’s finding of fact can be set aside if clearly
erroneous, Fed. R. Civ. P. 52(a), but, as explained in Artis,
a jury’s determination can be set aside only if “there is no
legally sufficient evidentiary basis for a reasonable jury to
find for that party [the party opposing judgment as a mat-
ter of law].” Fed. R. Civ. P. 50(a). Yet the canonical formu-
lation of the clearly-erroneous standard is that it requires
the reviewing court to have “a definite and firm convic-
tion that a mistake has been committed.” Concrete Pipe &
Products of California, Inc. v. Construction Laborers Pension
Trust for Southern California, 508 U.S. 602, 622 (1993); see
also, e.g., United States v. Smith, 103 F.3d 600, 606 (7th Cir.
1996). This is strong language; how different is its import
from that of deciding that a jury’s finding was unreason-
able? And if there is a difference, is it one within the cog-
nitive capacity of a reviewing court to discern? For we have
remarked a number of times that there are limits to the
fineness of the distinctions that judges are able to make.
United States v. Hill, 196 F.3d 806, 808 (7th Cir. 1999); United
States v. Boyd, 55 F.3d 239, 242 (7th Cir. 1995); Johnson v.
Trigg, 28 F.3d 639, 643-44 (7th Cir. 1994); Morales v. Yeutter,
952 F.2d 954, 957 (7th Cir. 1991); Haugh v. Jones & Laughlin
Steel Corp., 949 F.2d 914, 917 (7th Cir. 1991); United States v.
McKinney, 919 F.2d 405, 421-23 (7th Cir. 1990) (concurring
opinion). But this is a general issue of judicial epistemol-
ogy, in no way special to cases involving racial discrimina-
tion; and, as we are about to see, it does not have to be re-
solved in this case.
  Once the facts are found, the question becomes whether
they demonstrate a forbidden racial preference. The fact of
a preference, of discrimination, is just that—a fact. Pullman-
Nos. 00-3771, 00-3768                                         5

Standard v. Swint, 456 U.S. 273, 287-90 (1982). The question
whether it is an unlawful preference is a question about the
application of the law to the fact. As with many other such
questions in constitutional cases, it is to be decided as if
it were a pure question of law, that is, with no deference
given to the finder of fact, whether judge or jury. Grutter v.
Bollinger, 288 F.3d 732, 738 (6th Cir. 2002) (en banc); Hunter
v. Regents of University of California, 190 F.3d 1061, 1063 (9th
Cir. 1999); Wessmann v. Gittens, 160 F.3d 790, 795 (1st Cir.
1998); Engineering Contractors Ass’n of South Florida Inc. v.
Metropolitan Dade County, 122 F.3d 895, 905 (11th Cir. 1997).
The findings of fact made by the jury in this case are nei-
ther clearly erroneous nor unreasonable (assuming these
are meaningfully, ascertainably distinct criteria), and what
they reveal, so far as the black and female affirmative-
action promotions are concerned, is the following. Until
Orlando Wilson became the City of Chicago’s police com-
missioner in 1960, black and white police officers were
segregated, with black officers being confined to the parts
of Chicago that were predominantly black. However,
blacks were hired roughly in proportion to their share of
the Chicago population. Wilson desegregated the police
force. The City presented evidence that this resulted in a
decline in the hiring of blacks. That may seem a paradoxical
consequence of desegregation, but the evidence dispels the
paradox. The evidence shows that white officers didn’t
want to serve with blacks. There were numerous acts of
racial harassment of blacks, and black applicants flunked
the police medical exam at rates suspiciously higher than
whites. As a result of these circumstances, applications of
blacks to the police force plummeted. After reforms in the
mid-1970s that are acknowledged to have eliminated or at
least greatly reduced racial discrimination in the Chicago
police department, the rate of black applications climbed,
6                                      Nos. 00-3771, 00-3768

and black applicants no longer flunked the medical exam
at rates significantly higher than whites.
  The evidence that we have briefly summarized justified
a finding that discrimination by members of the police
force depressed the hiring of blacks during the 1960s, lead-
ing in turn to a deficit of blacks in senior positions in the
1980s. The affirmative-action promotions of blacks chal-
lenged here, promotions designed to remedy the discrimi-
nation that we have just described, involved the promo-
tion of 11 black sergeants out of a total of 182 promotions
of sergeants and 3 black lieutenants out of a total of 50
promotions of lieutenants. These affirmative-action promo-
tions resulted in percentages of black sergeants and lieu-
tenants that still were lower than would have been ex-
pected had there not been that decline in the entry-level
hiring of blacks in the 1960s.
   The evidence that the decline was the result of discrimi-
nation was not conclusive. The plaintiffs presented evi-
dence that the decline was the result of racial tensions in
the 1960s that made blacks reluctant to become police of-
ficers because it would make them unpopular with other
blacks. Part of the evidence consisted of a report on the
Chicago police department by the Justice Department’s
Law Enforcement Assistance Administration. Against this
the City presented evidence that although racial tensions
were not limited to Chicago during the 1960s, other cities
did not experience a drop off in black hiring for their police
forces, which suggests that something other than racial
tensions probably accounted for the drop off in Chicago;
that something other may have been discrimination. The
conflict over this issue was one for the jury to resolve, sub-
ject to deferential review. For the issue was purely factual:
the cause of the depressed hiring of blacks in the sixties.
Since remedying past discrimination is a recognized jus-
Nos. 00-3771, 00-3768                                         7

tification for affirmative action, and since the action taken
was modest—the promotion out of rank of a mere handful
of blacks, resulting merely in delayed promotion for some
whites rather than in anyone’s losing his job or failing
(eventually) to get the promotion he sought and was en-
titled to—the conclusion that the defendant had not vio-
lated the equal protection clause followed directly from the
jury’s factual findings. Chicago Firefighters Local 2 v. City of
Chicago, 249 F.3d 649 (7th Cir. 2001); Majeske v. City of
Chicago, 218 F.3d 816 (7th Cir. 2000), cert. denied, 531 U.S.
1079 (2001); McNamara v. City of Chicago, 138 F.3d 1219 (7th
Cir. 1998); Stuart v. Roche, 951 F.2d 446 (1st Cir. 1991);
Donaghy v. City of Omaha, 933 F.2d 1448 (8th Cir. 1991).
  The case for the affirmative-action promotion of the five
women was even stronger. Until the 1970s women were
formally barred from being hired for most jobs in the police
department, including patrol officer. As a result, few were
hired and many were deterred from applying because of
the truncated career opportunities.
  The plaintiffs argue that even if all this is true, the City’s
effort to defend its affirmative-action promotions is barred
by the doctrine of judicial estoppel, which to discourage
fraud in the litigation process bars a litigant who has ob-
tained a judgment on the basis of proving one set of facts
from obtaining a second judgment by turning around and
proving that the facts were actually the opposite of what he
had proved in the prior case. New Hampshire v. Maine, 532
U.S. 742, 749-51 (2001); DeVito v. Chicago Park District, 270
F.3d 532, 534 (7th Cir. 2001); Bethesda Lutheran Homes &
Services, Inc. v. Born, 238 F.3d 853, 857-58 (7th Cir. 2001);
Lydon v. Boston Sand & Gravel Co., 175 F.3d 6, 12-13 (1st Cir.
1999). In an earlier suit, in which the City was charged with
discriminating against blacks in hiring for the police force,
we reversed the district court’s finding that the City had
8                                     Nos. 00-3771, 00-3768

violated the equal protection clause, on the ground that the
City had not been proved to have engaged in intentional
discrimination. At the time the case was tried, it was wide-
ly believed that discrimination did not have to be inten-
tional in order to violate the equal protection clause. But
while the case was on appeal, the Supreme Court held that
it did have to be intentional, Washington v. Davis, 426 U.S.
229 (1976), and that is why this court reversed the finding
of an equal protection violation. United States v. City of
Chicago, 549 F.2d 415, 435 (7th Cir. 1977). Intentional dis-
crimination had not been at issue in the case and there was
no finding that the City had not engaged in intentional
discrimination and hence no inconsistency with the City’s
position in the present case, one of mea culpa. And anyway
the City had not obtained a favorable judgment in the ear-
lier case—for we upheld the district court’s ruling that the
City had violated Title VII and the relief ordered would
have been no different had the City been found to have en-
gaged in intentional discrimination as well. The City ob-
tained no advantage from not acknowledging that it had
engaged in such discrimination.
  The City defends the affirmative-action promotions of
the blacks and the women on the further, alternative
ground that they were justified by the operational needs of
the police force—a ground completely different from
the remedial ground that we have been discussing. One
ground is enough, so we need not consider the alternative
ground except with regard to the Hispanic who the district
court determined had been improperly promoted. For the
City’s argument is not that his promotion was justifiable as
a remedy against past discrimination against Hispanics—
the disparity between the percentage of Hispanic police-
men and the percentage of Hispanic Chicagoans in 1990
was due largely to the rapid growth of the city’s Hispanic
Nos. 00-3771, 00-3768                                      9

population in the 1980s—but that it was justifiable in order
to make the police force more effective in performing its
duties. By 1990 the population of Chicago was almost 20
percent Hispanic but fewer than 5 percent of police lieuten-
ants were Hispanic. Because there were only 14 Hispan-
ic lieutenants before the affirmative-action promotion of
Sergeant Denk and the police work in three shifts with
the result that the number of lieutenants per shift is small,
on any given shift in 1990 only two or three Hispanic lieu-
tenants were on duty in the entire city, with its population
of 2.78 million in 1990 of whom more than 500,000 were
Hispanic.
   The evidence presented by the City, including the tes-
timony of a competent expert witness, established a two-
fold need for a larger number of Hispanic lieutenants. First,
lieutenants and captains are the principal supervisors in
the police department. They set the tone for the depart-
ment. If there are negligible numbers of Hispanics in these
ranks (and in 1990 the percentage of Hispanic captains was
only half the percentage of Hispanic lieutenants), non-His-
panic police officers are less likely to be sensitized to any
special problems in policing Hispanic neighborhoods.
Second, the lieutenants and captains act as “ambassadors”
to the various communities that make up Chicago, of
which the Hispanic community is an important one. Ef-
fective police work, including the detection and apprehen-
sion of criminals, requires that the police have the trust of
that community and they are more likely to have it if they
have “ambassadors” to the community of the same ethnic-
ity. It is true that Denk does not have a Hispanic name, and
for all we know does not even speak Spanish. But like
William Richardson, President Clinton’s last Secretary of
Transportation, Denk is accepted by the Hispanic commu-
nity as a member of the community on the basis of the fact
10                                     Nos. 00-3771, 00-3768

that his mother is Hispanic; there is an analogy to Jewish
religious law, under which a person whose mother is Jew-
ish is Jewish regardless of the father’s religion.
  What we have recited are the facts and it remains to con-
sider whether they justified discriminating in favor of
Denk. As explained earlier, this is a judgment for us to
make without deference to the district judge. Justifications
of discrimination that are based on a public employer’s
operational needs are suspect, because they seem to have
no natural limits, unlike remedial justifications, which
cease when the last traces of the discrimination that gave
rise to the remedy have been eliminated. Some discrimina-
tion, whether of the old-fashioned kind or the modern
“affirmative action” kind, is vicious, ignorant, political, or
otherwise invidious, but much is not. To allow discrimina-
tion on the basis that it was efficient or expedient would
cause inroads into equal protection that the courts are un-
willing to countenance.
  As we pointed out in Builders Ass’n of Greater Chicago v.
Cook County, 256 F.3d 642, 644 (7th Cir. 2001), the question
whether nonremedial justifications for affirmative action
can ever satisfy the equal protection clause has in the ab-
sence of definitive resolution by the Supreme Court caused
bitter divisions in the lower federal courts. Many courts,
however, including our own have at least 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 and correc-
tional institutions. Wittmer v. Peters, supra, 87 F.3d at 920-
21; Barhold v. Rodriguez, 863 F.2d 233, 238 (2d Cir. 1988);
Talbert v. City of Richmond, 648 F.2d 925, 928-32 (4th Cir.
1981); Detroit Police Officers’ Ass’n v. Young, 608 F.2d 671,
695-96 (6th Cir. 1979). Especially in a period of heightened
public concern with the dangers posed by international ter-
Nos. 00-3771, 00-3768                                      11

rorism, effective police work must be reckoned a national
priority that justifies some sacrifice of competing interests.
If it is indeed the case that promoting one Hispanic police
sergeant out of order is important to the effectiveness of
the Chicago police in protecting the people of the city from
crime, the fact that this out-of-order promotion technically
is “racial discrimination,” though its impact, incidence, and
motivation are remote from the impact, incidence, and
motivation that have shaped the current legal view of racial
discrimination, does not strike us as an impressive counter-
weight.
  The imperative need for this discrimination had, how-
ever, to be proved and not merely conjectured. It would
not have done for the City merely to have presented plaus-
ible argumentation or to have appealed merely to common
sense. It had to substantiate its position with evidence. It
did so. It proved that it has a compelling need to increase
the number of Hispanic lieutenants; and the increase it de-
fended—the promotion of one Hispanic sergeant—is the
smallest increase it could have made.
  The judgment is affirmed in part and reversed in part,
and the case is remanded with instructions to enter judg-
ment for the City.

A true Copy:
        Teste:

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


                    USCA-97-C-006—6-21-02
