584
Scalia, J., dissenting
gram without first making contemporaneous findings that such a program is justified by specific instances of past discrimination. Id., at 289-291. Quite obviously, whether a State may take voluntary action without first determining that it has violated the law has nothing to do with whether a federal court may impose a remedy without first determining that the State has violated the law.
The Court evidently believes that an adjudication of un-constitutionality of District 21 was unnecessary here because the State entered into a consent agreement accepting judicial imposition of Plan 386. For this proposition it relies upon Firefighters v. Cleveland, 478 U. S. 501 (1986), which said that "it is the parties' agreement that serves as the source of the [District Court's] authority to enter . . . judgment . . . ." Id., at 522. However, that passage from Firefighters is of no help to the Court—even putting aside the fact that the "agreement" there at issue, unlike the one here, was an agreement to remedy unlawful conduct (a "pattern of racial discrimination") that had been adjudged, id., at 506, 511- 512.1 Firefighters was a Title VII action by minority firefighters, alleging that the city discriminated against them in promotions. A union representing the majority of the city's firefighters intervened as a party-plaintiff and objected to the settlement, contending, among other things, that its consent was required in order for the District Court to enter a consent decree. We disagreed. The minority firefighters and the city, we said, could have reached an out-of-court agreement to resolve their dispute. See id., at 522-523, and
1 I am puzzled by the Court's assertion that "our opinion in [Firefighters] makes no reference to any findings of liability." Ante, at 579, n. 6. We said: "Judge Lambros found that '[t]he documents, statistics, and testimony presented at [the] hearings reveal a historical pattern of racial discrimination in the promotions in the City of Cleveland Fire Department.' " Firefighters, 478 U. S., at 511-512 (quoting Vanguards of Cleveland v. Cleveland, Civ. Action C-80-1964 (ND Ohio, Jan. 31, 1983), reprinted in Brief in Opposition in Firefighters v. Cleveland, O. T. 1986, No. 84-1999, pp. A3-A4).
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